State News : New Jersey

There are precious few reported decisions dealing with the jurisdictional requirements for bringing a claim petition in New Jersey when a New Jersey resident is employed out of state, is injured working out of state and is hired out of state.  In the reported case of Marconi v. United Airlines, A-0110-18T4 (App. Div. July 22, 2019), the Appellate Division affirmed the dismissal of two claims against United Airlines for lack of jurisdiction in just this situation. The case was successfully handled at both the division and appellate levels by Prudence Higbee, Esq., a partner with Capehart Scatchard.

The facts in the case were not disputed.  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.  Marconi tried to build up his contacts with New Jersey as much as he could.  He argued that his supervisor reported to a United employee at Newark’s Liberty International Airport.  Marconi also contended that he himself would telephone United staff at Liberty International Airport once every couple of months for technical advice.  He received training all over the world, including in Newark.  He would fly from Newark whenever United assigned him to do “field service.” Marconi’s supervisor sometimes would drive to Liberty International Airport to retrieve parts there.  United argued that these contacts with New Jersey were truly minimal.

The Judge of Compensation reviewed Professor Larson’s treatise on grounds for jurisdiction:

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 statute the parties expressly adopted by contract.

The Judge of Compensation dismissed both claims, finding that residence in New Jersey alone has never been sufficient for jurisdiction. The Appellate Division emphatically agreed: “We conclude that residency alone is an insufficient basis to confer jurisdiction on the Division for extra-territorial workplace injuries.”

Petitioner argued on appeal that even if residency alone was insufficient, the fourth factor, namely “place where the industry is localized,” should have been sufficient for jurisdiction in conjunction with petitioner’s residency in New Jersey.   There are only one or two published cases that have ever discussed the concept of “localization” of an industry, and Marconi provides the most complete analysis to date, citing cases from around the nation on this concept.

First the Court said that “in no state workers’ compensation scheme was localization alone sufficient to confer jurisdiction.”  Professor Larson explained the rationale for localization of an industry as a criterion for jurisdiction:  “The state in which the employer’s business is localized has a relevant interest in a compensable injury . . . since the obligation side of the compensation relation is as much a part of that relation as the benefit side, and since the burden of payment would ordinarily fall most directly on the employer and community where the industry is centered.” The Court seemed to accept Marconi’s argument that New Jersey was a place where United’s industry was localized, but it still rejected jurisdiction.  That was the most interesting aspect of the case.

The Appellate Division in Marconi analyzed the concept of localization in terms of advancement of company interests. “It is the nature and frequency of the employee’s relationship with the localized presence of the employer that lends weight to the fourth Larson factor.  In other words, in this case, did Marconi’s ‘duties to a substantial extent . . . implement the localized business’ of United in New Jersey?” (citations omitted).   The Court answered its own question in the negative. “Essentially, 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.” 

The Court explained that Marconi’s contacts with Liberty International were mainly to advance Marconi’s ability to perform his work in Philadelphia.  “Even when Marconi used United’s facilities at Liberty International Airport, it was to serve United’s interest elsewhere around the country.”

After disposing of the traumatic claim petition for lack of jurisdiction, the Court then dealt briefly with the occupational claim petition, reminding practitioners that there is a different standard for jurisdiction in occupational claims from traumatic claims.  The Court cited Williams v. Port Authority of New York & New Jersey, 175 N.J. 82 (2003) to make this point clear:  “The petitioner must demonstrate either that (1) there was a period of work exposure in this State that was not insubstantial under the totality of circumstances and given the nature of the injury; (2) the period of exposure was not substantial but the materials were highly toxic; or (3) the disease for which compensation is sought was obvious or disclosed ‘by medical examination, work incapacity, or manifest loss of physical function’ while working in New Jersey.” Obviously petitioner could not meet this test because there was no work exposure in New Jersey.

In the opinion of this practitioner, the Marconi decision provides the most thorough analysis to date of the fourth criterion cited by Professor Larson in his treatise, namely “localization of business.”  The Court flatly concludes that “localization of business” alone is insufficient for New Jersey jurisdiction.  The implications of this statement are significant because there are hundreds of cases pending in New Jersey now involving medical claim petitions where the injured worker lives in New York, is hired in New York, and works in New York.  The only connection to New Jersey in many of these claims is that a medical procedure occurred in New Jersey.  Medical providers have filed countless claims of this nature seeking jurisdiction in New Jersey to argue that the New York fee schedule should not apply and ultimately seeking the right to additional reimbursements.  The Appellate Division has yet to weigh in on these cases.  When one of these MCP cases finally reaches the Appellate Division, one can expect that the analysis in Marconi will certainly be considered.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

On July 8, 2019, Governor Phil Murphy signed Senate No. 716 into law, a bill which makes sweeping changes to occupational disease claims for New Jersey public safety employees.  There are many aspects of the new law, known as the “Thomas P. Canzanella Twenty First Century First Responders Protection Act.”  The single most onerous provision in the bill for municipalities, counties and the State is the provision covering firefighters for a wide range of cancers that will now be presumed to be compensable.

With respect to firefighters, both paid and unpaid, the bill provides that firefighters under the age of 76 will be presumed to have work related occupational disease if the firefighter develops cancer, including leukemia, so long as the firefighter has completed more than seven years of service.  The presumption means that if such a firefighter is diagnosed with cancer, the Judge of Compensation must presume that the cancer is work related.  There is no need for a firefighter with more than seven years of active service under age 76 to identify specific exposures or fires that he or she fought.  The burden of proof does not rest on the firefighter to prove his or her case.  Rather, the employer will lose unless the employer can disprove the case by a preponderance of the evidence.  To defeat the presumption created by this law, the employer has to prove that there is a greater than 50% chance that the cancer is not due to work exposure.

For a firefighter 75 years of age or under with seven years of service, the firefighter can seek workers’ compensation benefits for any type of cancer, even the most common cancers.  The only limitation is that the cancer must be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer.  That organization is part of the World Health Organization.

The problem for public employers in disproving a presumed cancer claim is that there are any number of contradictory and competing studies in the medical literature with respect to firefighting and cancer.  Some articles say there is no link between firefighting and common cancers like prostate cancer and colon cancer, but others make the connection.   Prostate cancer is the most common cancer in men, and the incidence climbs with age.  There is more of a scientific consensus linking firefighting to certain skin cancers, multiple myeloma, lung cancer, malignant melanoma, leukemia and non-hodgkins lymphoma. 

A firefighter with less than seven years of service can still file a claim, but he or she must meet a different and new standard pertaining to public safety workers.  That provision states that a public safety worker is covered for workers’ compensation if he or she is exposed to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer.  This section of the law specifically covers damage to reproductive organs.  Again, there is a presumption of compensability, so the burden of proof shifts to the employer.  But this section requires the public safety worker to show that he or she was exposed due to fire, explosion or other means to a known carcinogen, to cancer-causing radiation or radioactive substances.  In addition, he or she must demonstrate that the injury, illness or death manifested during his or her employment as a public safety worker. The language regarding manifestation during employment is helpful to employers.  However, this language is not included in the previous provision dealing with firefighters who are 75 years old or younger and have seven years of service.

Public safety workers are defined as follows:

1.      Member, employee or officer of a paid, part paid or volunteer fire or police department;

2.      State police member

3.      Community Emergency Response Team member approved by the New Jersey Office of Emergency Management;

4.      Member of certain correctional facilities;

5.      Advanced medical technicians of a first aid or rescue squad;

6.      Any other nurse or advanced medical technician responding to a catastrophic incident who is in contact with the public during such an incident.

Public safety workers who contract a serious communicable disease or related illness also shall have a presumption of compensability that the injury or illness is work related and compensable.   The new law protects public safety workers who are exposed to secretions, blood or other bodily fluids of one or more other individuals as well as those who are exposed to any pathogen or biological toxin used in biological warfare or prevalent in epidemics. 

The new law also applies to public safety workers who are injured or become ill while administering a vaccine including smallpox, or as part of an inoculation program in the workforce.  Once again there is a presumption of compensability, but the employer can prevail if the employer can show by a preponderance of evidence that there is no link between the medical condition and work exposures.

In all of these new provisions, there is interesting language stating as follows:  “The employer may require the worker to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the worker which is relevant to determining . . .  whether the occupational disease arose from the employment.”  This language seems to suggest that when the employer is presented with such a claim, the employer can then test and evaluate the worker going forward.  It is not clear if this means that an employer can test existing employees who have not brought claims.

Here are a number of questions that clients are already asking:

Question:  What can a public entity do to make sure that a public safety job applicant does not have a covered cancer when hired? 

Answer:  Public employers are strongly encouraged to perform post-offer medical examinations of public safety job applicants using a detailed questionnaire regarding medical conditions that the employee may already have.  Readers can consult with the undersigned for advice on this questionnaire.

Question:  How will employers know if public safety workers could have exposures to known carcinogens, cancer-causing radiation or a radioactive substance?

Answer: The new law requires public employers to maintain records regarding any instance in which any public safety worker is deployed to a facility or location where the presence of one or more substances which are known carcinogens is indicated in documents provided to local fire or police departments and where fire, explosions, spills or other events occurred which could result in exposure to those carcinogens.  The law requires that the records must include the identity of each deployed public safety worker, and it requires that each worker must be provided notice of the records.  This requirement also pertains to firefighters. 

Question:  What if the firefighter or public safety worker wears respiratory protection when attending a fire, spill or explosion?  Does the employer still have to document all such workers?

Answer: This law makes no mention of documenting use of respiratory protection, but it will obviously be advisable to employers to include this information in documentation.  Whether or not the public safety worker used respiratory protection, the new law requires the employer to document every public safety worker who appears at a fire, spill or explosion or other potentially hazardous event.

Question:  Will DNA testing be allowed to determine whether a worker carries a certain cancer gene?

Answer:  There is no discussion of the use of DNA testing, but this is an issue that will likely be addressed by the courts.

Question:  Is the provision relating to firefighters limited to existing and active employees?

Answer:  No, firefighters age 75 or younger are protected so long as they have not been out of active service for more than 20 years.   This means that employers will be getting claim petitions for cancer-related conditions from firefighters who have long departed from active service.  Employers should therefore retain records of exposures for decades.

Question:  What impact will these new occupational disease laws have on our workers’ compensation programs?

Answer:  The Office of Legislative Services estimates that the bill will most likely increase annual expenditures by State and local public entities that utilize public safety workers.  The Office has no idea how much the increase will be.  In this practitioner’s opinion, there will be substantial increased costs on public entities for medical, temporary disability and permanency benefits as well as defense costs and the cost of oncologists and other defense experts.  More trials are likely because presumptions tilt the scales in the favor of workers.

Question:  Does this new law apply to public safety workers and firefighters who have already retired?

Answer: This law is effective immediately, and the law does seem to apply to those who have already retired.  There is no language restricting this law to existing employees of public entities.  There will certainly be a sharp increase in the filing of workers’ compensation claim petitions in the public sector given that common cancers will now be presumed to be work related.

Question:  How are public entities supposed to defend cancer claims of this nature?

Answer:   Presumptions are very hard to overcome for employers.  It will help that the employer has to disprove the claim by a preponderance of the evidence, as opposed to the initial draft of the law which required proof by clear and convincing evidence.   Since cancer cases are going to be the main focus of the new bill, and since these claims will always involve high exposure, employers will need to retain lawyers and oncologists who specialize in complex occupational disease claims.   Aggressive discovery not seen in ordinary workers’ compensation claims will now be paramount with special interrogatories almost certainly needed given the inadequacy of form occupational disease interrogatories.

Question:  Should employers retain board certified internists as experts in future cancer claims?

Answer:  Retaining board certified internists will not likely be sufficient to overcome a presumption of compensability since these cases will center on highly technical epidemiological studies done in many countries on cancer risks in firefighters and public safety workers.  There will be a great deal of discussion of current thought by the International Agency for Research on Cancer.  The cases will also center on the reliability of certain medical journals and studies, and oncologists are more familiar with these issues than other physicians.  Although board certified oncologists will be more expensive to retain, employers will need experts with impeccable credentials in order to overcome the statutory presumption of compensability.

Question:  Does this law eliminate the statute of limitations on occupational disease claims?

Answer: No, this bill does not mention or eliminate the provision that an employee has two years to file from the date when the employee knows he or she has a cancer condition and thinks it is related to work.

Public entities and third party administrators may contact the undersigned for additional advice on defending claims under this new statute.

--------------------------------

John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

On July 8, 2019, Governor Phil Murphy signed Senate No. 716 into law, a bill which makes sweeping changes to occupational disease claims for New Jersey public safety employees.  There are many aspects of the new law, known as the “Thomas P. Canzanella Twenty First Century First Responders Protection Act.”  The single most onerous provision in the bill for municipalities, counties and the State is the provision covering firefighters for a wide range of cancers that will now be presumed to be compensable.

With respect to firefighters, both paid and unpaid, the bill provides that firefighters under the age of 76 will be presumed to have work related occupational disease if the firefighter develops cancer, including leukemia, so long as the firefighter has completed more than seven years of service.  The presumption means that if such a firefighter is diagnosed with cancer, the Judge of Compensation must presume that the cancer is work related.  There is no need for a firefighter with more than seven years of active service under age 76 to identify specific exposures or fires that he or she fought.  The burden of proof does not rest on the firefighter to prove his or her case.  Rather, the employer will lose unless the employer can disprove the case by a preponderance of the evidence.  To defeat the presumption created by this law, the employer has to prove that there is a greater than 50% chance that the cancer is not due to work exposure.

For a firefighter 75 years of age or under with seven years of service, the firefighter can seek workers’ compensation benefits for any type of cancer, even the most common cancers.  The only limitation is that the cancer must be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer.  That organization is part of the World Health Organization.

The problem for public employers in disproving a presumed cancer claim is that there are any number of contradictory and competing studies in the medical literature with respect to firefighting and cancer.  Some articles say there is no link between firefighting and common cancers like prostate cancer and colon cancer, but others make the connection.   Prostate cancer is the most common cancer in men, and the incidence climbs with age.  There is more of a scientific consensus linking firefighting to certain skin cancers, multiple myeloma, lung cancer, malignant melanoma, leukemia and non-hodgkins lymphoma. 

A firefighter with less than seven years of service can still file a claim, but he or she must meet a different and new standard pertaining to public safety workers.  That provision states that a public safety worker is covered for workers’ compensation if he or she is exposed to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer.  This section of the law specifically covers damage to reproductive organs.  Again, there is a presumption of compensability, so the burden of proof shifts to the employer.  But this section requires the public safety worker to show that he or she was exposed due to fire, explosion or other means to a known carcinogen, to cancer-causing radiation or radioactive substances.  In addition, he or she must demonstrate that the injury, illness or death manifested during his or her employment as a public safety worker. The language regarding manifestation during employment is helpful to employers.  However, this language is not included in the previous provision dealing with firefighters who are 75 years old or younger and have seven years of service.

Public safety workers are defined as follows:

1.      Member, employee or officer of a paid, part paid or volunteer fire or police department;

2.      State police member

3.      Community Emergency Response Team member approved by the New Jersey Office of Emergency Management;

4.      Member of certain correctional facilities;

5.      Advanced medical technicians of a first aid or rescue squad;

6.      Any other nurse or advanced medical technician responding to a catastrophic incident who is in contact with the public during such an incident.

Public safety workers who contract a serious communicable disease or related illness also shall have a presumption of compensability that the injury or illness is work related and compensable.   The new law protects public safety workers who are exposed to secretions, blood or other bodily fluids of one or more other individuals as well as those who are exposed to any pathogen or biological toxin used in biological warfare or prevalent in epidemics. 

The new law also applies to public safety workers who are injured or become ill while administering a vaccine including smallpox, or as part of an inoculation program in the workforce.  Once again there is a presumption of compensability, but the employer can prevail if the employer can show by a preponderance of evidence that there is no link between the medical condition and work exposures.

In all of these new provisions, there is interesting language stating as follows:  “The employer may require the worker to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the worker which is relevant to determining . . .  whether the occupational disease arose from the employment.”  This language seems to suggest that when the employer is presented with such a claim, the employer can then test and evaluate the worker going forward.  It is not clear if this means that an employer can test existing employees who have not brought claims.

Here are a number of questions that clients are already asking:

Question:  What can a public entity do to make sure that a public safety job applicant does not have a covered cancer when hired? 

Answer:  Public employers are strongly encouraged to perform post-offer medical examinations of public safety job applicants using a detailed questionnaire regarding medical conditions that the employee may already have.  Readers can consult with the undersigned for advice on this questionnaire.

Question:  How will employers know if public safety workers could have exposures to known carcinogens, cancer-causing radiation or a radioactive substance?

Answer: The new law requires public employers to maintain records regarding any instance in which any public safety worker is deployed to a facility or location where the presence of one or more substances which are known carcinogens is indicated in documents provided to local fire or police departments and where fire, explosions, spills or other events occurred which could result in exposure to those carcinogens.  The law requires that the records must include the identity of each deployed public safety worker, and it requires that each worker must be provided notice of the records.  This requirement also pertains to firefighters. 

Question:  What if the firefighter or public safety worker wears respiratory protection when attending a fire, spill or explosion?  Does the employer still have to document all such workers?

Answer: This law makes no mention of documenting use of respiratory protection, but it will obviously be advisable to employers to include this information in documentation.  Whether or not the public safety worker used respiratory protection, the new law requires the employer to document every public safety worker who appears at a fire, spill or explosion or other potentially hazardous event.

Question:  Will DNA testing be allowed to determine whether a worker carries a certain cancer gene?

Answer:  There is no discussion of the use of DNA testing, but this is an issue that will likely be addressed by the courts.

Question:  Is the provision relating to firefighters limited to existing and active employees?

Answer:  No, firefighters age 75 or younger are protected so long as they have not been out of active service for more than 20 years.   This means that employers will be getting claim petitions for cancer-related conditions from firefighters who have long departed from active service.  Employers should therefore retain records of exposures for decades.

Question:  What impact will these new occupational disease laws have on our workers’ compensation programs?

Answer:  The Office of Legislative Services estimates that the bill will most likely increase annual expenditures by State and local public entities that utilize public safety workers.  The Office has no idea how much the increase will be.  In this practitioner’s opinion, there will be substantial increased costs on public entities for medical, temporary disability and permanency benefits as well as defense costs and the cost of oncologists and other defense experts.  More trials are likely because presumptions tilt the scales in the favor of workers.

Question:  Does this new law apply to public safety workers and firefighters who have already retired?

Answer: This law is effective immediately, and the law does seem to apply to those who have already retired.  There is no language restricting this law to existing employees of public entities.  There will certainly be a sharp increase in the filing of workers’ compensation claim petitions in the public sector given that common cancers will now be presumed to be work related.

Question:  How are public entities supposed to defend cancer claims of this nature?

Answer:   Presumptions are very hard to overcome for employers.  It will help that the employer has to disprove the claim by a preponderance of the evidence, as opposed to the initial draft of the law which required proof by clear and convincing evidence.   Since cancer cases are going to be the main focus of the new bill, and since these claims will always involve high exposure, employers will need to retain lawyers and oncologists who specialize in complex occupational disease claims.   Aggressive discovery not seen in ordinary workers’ compensation claims will now be paramount with special interrogatories almost certainly needed given the inadequacy of form occupational disease interrogatories.

Question:  Should employers retain board certified internists as experts in future cancer claims?

Answer:  Retaining board certified internists will not likely be sufficient to overcome a presumption of compensability since these cases will center on highly technical epidemiological studies done in many countries on cancer risks in firefighters and public safety workers.  There will be a great deal of discussion of current thought by the International Agency for Research on Cancer.  The cases will also center on the reliability of certain medical journals and studies, and oncologists are more familiar with these issues than other physicians.  Although board certified oncologists will be more expensive to retain, employers will need experts with impeccable credentials in order to overcome the statutory presumption of compensability.

Question:  Does this law eliminate the statute of limitations on occupational disease claims?

Answer: No, this bill does not mention or eliminate the provision that an employee has two years to file from the date when the employee knows he or she has a cancer condition and thinks it is related to work.

Public entities and third party administrators may contact the undersigned for additional advice on defending claims under this new statute.

--------------------------------

John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

In 1979, the New Jersey Legislature made sweeping changes to the Workers’ Compensation Act.  Among those was the creation of a sliding scale on the Schedule of Disabilities found in N.J.S.A. 34:15-12c.  The legislative intent was to award greater compensation to the more seriously injured worker.  To accomplish this intent, the pertinent language in Section 12c says: “When a claim petition alleges more than one disability, the number of weeks in the award shall be determined and entered separately for each such disability and the number of weeks for each disability shall be cumulative when entering the award.”

Initially judges of compensation as well as appellant panels had mixed interpretations of the above section.  The issue was resolved in 1984 with the New Jersey Supreme Court decision in Poswiatowski v. Standard Chlorine Chemical Co., 96 N.J. 321 (1984).  Poswiatowski was actually a consolidation of three cases and the other two are: Fagan v. City of Atlantic City and Smith v. United States Pipe and Foundry Company. 

In Poswiatowski, the petitioner fell in 1981 fracturing his back and left foot and received an award of 20% permanent partial disability for the back, 40% of the foot and 10% permanent partial disability for the neuropsychiatric component.  The trial court, believing that the award should be entered separately, gave $6,924 (120 weeks @ $59) for the back, $4,328 (92 weeks @ $47.04) for the foot and $2,820 (60 weeks @ $47) neuropsychiatric for a total of $13,172.  Petitioner argued that the total of the weeks should dictate the rate, and he should have been awarded 272 weeks at 50% SAWW (State Average Weekly Wage) or $33,456.  The Appellate Division affirmed and the Supreme Court granted certification.

In the Fagan case, the petitioner, a public health nurse, was assaulted and robbed during the course of her employment.  She suffered a concussion, fractured nose, facial scarring, sinus disorders, headaches, facial numbness and recurring nightmares.  The compensation court awarded her 7 ½% permanent partial disability (45 weeks) for the fractured nose, 7 ½% permanent partial disability (45 weeks) for severe contusions of the scalp, lips and mouth with numbness, and 15% permanent partial disability (90 weeks) for the post traumatic nightmares.  That totaled 180 weeks (30% permanent partial disability) at an average rate of $57.30 or $10,314.  The Appellate Division reversed and modified the award to $8,460. ($2,115 nose + $2,115 contusions and numbness of face plus $4,230 nightmares).  Again, the Supreme Court granted certification.

In Smith, petitioner received a significant crush injury to his right forearm resulting in numerous surgeries for vascular, orthopedic and cosmetic injuries together with skin grafts from petitioner’s abdomen and right thigh.  The compensation court awarded 23% permanent partial disability (138 weeks @ $66) for the combination of the right hand and right leg (apportioned 50% of the hand and 5% of the leg), 10% permanent partial disability (60 weeks @ $47) for the cosmetic scarring of the abdomen and 12 ½% permanent partial disability  (75 weeks @ 47) for neuropsychiatric residuals for a total of $15,468.  Petitioner argued that he was entitled to 273 weeks at 50% SAWW or $33,759.  The Appellate Division agreed with petitioner, finding that the compensation court’s interpretation was “inconsistent with the purposes of the 1980 amendments.”

The Supreme Court stated “(W)e believe that the Smith case best illustrates the method most consistent with statutory purpose.” The court added,  “We hold that the weeks of compensation awarded for one accident’s multiple injuries that establish a single compensable disability should be cumulated, not separated, in computing the award.”

The Supreme Court went on to explain, “(O)f course, if the compensation judge uses the schedule as an aid in determining the extent of the award, such may be regarded as a reasonable finding if expressed in terms of permanent partial disability. Orlando v. F. Ferguson & Son, supra, 90 N.J.L. at 553, 102 A. 155. But the point of the Smith panel is to focus on the nature of the injury. The method of calculating permanent partial disability to two or more major body members under N.J.S.A. 34:15-12(c)(20), -12(c)(22), has not been affected by the 1980 amendments. The compensation court is not to determine the scheduled number of weeks for each injury separately; rather, it is to look at the effect of the injuries and to make a reasonable assessment of the extent of the combined disability in terms of a percentage of permanent and total disability. This requires the court to make a judgment about the extent of impairment resulting from the combined injuries without being limited by the statutory schedules. See Cooper v. Cities Serv. Oil Co., supra, 137 N.J.L. at 182, 59 A.2d 268; Orlando v. F. Ferguson & Son, supra,  90 N.J.L. at 557, 102 A. 155; Vishney v. Empire Steel & Iron Co., supra, 87 N.J.L. at 483-84, 95 A. 143.”

In further support the Court said: “(B)ut under the new schedule of benefits set forth in N.J.S.A. 34:15-12(c), the difference is of great significance. If the weeks due the injuries are added together when entering an award, more money is awarded. By the 1979 amendments, L. 1979, c. 283, § 5, the Legislature not only increased the weekly rate for permanent disability from a maximum of $40 to a maximum of 75% of statewide average weekly wage (SAWW), but also created a sliding scale of weekly dollar payments ranging from $47 where the adjudicated disability requires payment for 90 weeks or less, up to $82 for the last six weeks of disability for which 180 weeks of payments are required. Over 180 weeks of entitlement, there is a dramatic increase in weekly dollars payable. From 181 up to 600 weeks, disability is compensated from a low of 35% of SAWW (for disabilities drawing entitlement of from 181 to 210 weeks), to a maximum of 75% of SAWW (for disabilities falling within the 421- to 600-weeks bracket.)¹ See **1259 Gothelf v. Oak Point Dairies of N.J., 184 N.J.Super. 274, 445 A.2d 1170 (App.Div.1982).”

Based on this logic, the Supreme Court reversed the appellate division decisions in Poswiatowski and Fagan and affirmed the decision of the appellate division in Smith.

Now let’s consider how stacking affects reopener claims and new accidents.  Where an injury results in an award encompassing more than one body part, and the petitioner seeks to reopen that award under N.J.S.A. 34:15-27 for review and/or modification of the prior award, the petitioner need not allege an increase in disability to all affected body parts.  Since the original award set the overall disability for the accident, an increase of disability to one part is added to the overall award. In effect, the prior award becomes the base.

For example, let us assume that petitioner receives an award for injury occurring in 2017 to his or her lumbar spine and left shoulder.  The award is for 35% permanent partial disability apportioned 20% to the low back and 15% to the left shoulder (210 weeks x $418 = $85,260 assuming wages sufficient for maximum rates in 2017).  In 2019 petitioner files an application for review and/or modification alleging an increase in disability to the left shoulder. The judge of compensation finds an increase in disability of 7 ½% of the left shoulder, taking into consideration the overall disability to the petitioner in 2019.  The overall award must be increased to 42½% permanent partial disability apportioned 20% (unchanged) to the low back and 22 1/2% of the left shoulder. Because it is an extension of the original award, the award must be paid at the rates in effect for the year of the accident, which is 2017. (255 weeks x $522 = $133,110 less credit for the prior award of $85,260) The award calculation is made by going back to the beginning of the original award and changing the rate to $522 and paying the accrued weeks at the increased rate of $104 per week and the balance of the non-accrued weeks at the full $522.

In contrast to the example above, stacking does not occur with a new accident to one of several previously awarded body parts. Suppose our petitioner above received the original award of 35% permanent partial disability and then had a new accident in 2019 causing increased disability to the left shoulder only.  The Judge of Compensation finds an overall disability to the left shoulder to be 22 1/2% permanent partial disability.  That is 7.5% higher than the prior shoulder apportionment of 15%, but the new award is only based on the shoulder, not the low back.  In effect, the shoulder can be separated from the previously stacked award.  So the new award would be 22 ½ % permanent partial disability for the left shoulder minus a credit of 15 % preexisting with no mention of the back at all.  The new award would equal 135 weeks x $271.33 or $36,630 credit $22,140 (15% @ the 2019 rate) or $14,490.  Obviously, if the new award had been stacked on the prior back/shoulder award, it would have resulted in a great deal more money.

Notice in this example of the new 2019 accident impacting only the shoulder, that the rates must be those for 2019 for both the new award AND the credit. Obviously the new award should command 2019 rates since the new injury occurred in 2019, but the credit also jumps to 2019 rates, unlike the situation noted above for reopeners.

About the Author:

Prior to joining Capehart Scatchard as Of Counsel, Judge Hickey III (Ret.) served as the Compensation Administrative Supervisory Judge for the State of New Jersey from 1991 to 2009. Previous to his judgeship, he served as a Prosecutor in Gloucester County, New Jersey from 1986 to 1991

About the Editor:

 John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

Reopener petitions abound in New Jersey, but seldom does an injured worker seek on reopener to move an award of 30% permanent partial disability to total and permanent disability benefits.  That was the issue in Camarena v. Sprint PCS, A-2205-17T2 (App. Div. June 24, 2019). 

Ms. Camarena 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.  Camarena later reopened the award and sought total and permanent disability benefits with the Second Injury Fund.  Capehart and Scatchard partner, Michelle Duffield, argued successfully that petitioner’s subsequent increased disability was not related to the 1999 work accident but to subsequent non-work injuries.

There was no dispute that petitioner’s condition clearly worsened in the years following the 2003 award.  The dispute centered on what caused the worsening.  Petitioner admitted to having a car accident in July 2002 but claimed that she only injured her knee at that time.  Respondent obtained medical records from that accident and proved that petitioner treated for her neck and back after the 2002 accident. 

In 2004 petitioner suffered a serious fall from her knee giving out.  She obtained a new cervical MRI, which showed a new herniation in the neck, leading to a discectomy and fusion surgery at C5-6.  She fell again in 2007 and reinjured her low back.  A new MRI showed an L4-5 disc herniation and an L5-S1 disc herniation.  In 2007, she had a revision surgery on her neck.  In 2008, she fell again, leading to another cervical MRI. At the time of trial, she needed a health aide 40 hours per week during the day and 12 hours a week at night.

The petitioner’s expert testified that he knew about the right knee injury from the 2002 car accident, but he was unaware that petitioner complained about her neck and back from that accident and had a 2004 MRI showing a new disc herniation in her neck.  Respondent’s expert testified that petitioner’s worsening condition related to the subsequent car accident and subsequent falls from her knee injury sustained in the 2002 car accident. 

The Hon. George H. Gangloff, Jr. dismissed petitioner’s claim against Sprint PCS and against the Second Injury Fund.  Judge Gangloff found that there was a contradiction between petitioner’s description that she only injured her knee in the 2002 car accident when compared with the actual medical records documenting spine complaints.  The judge reviewed the medical records carefully and noted that the petitioner had several non-work injuries after the 1999 workers’ compensation injury. 

Petitioner appealed and argued that she was totally disabled from a worsening of the 30% award entered in 2003.  However, the Appellate Division pointed out that petitioner’s own orthopedic expert had mistakenly believed that the 2002 car accident only involved the petitioner’s knee.  Nor did the petitioner’s expert know much about the subsequent 2004 fall.  The Court held, “The 2002 motor vehicle accident was an independent intervening cause.  As a result of that injury in 2004, her knee later gave out causing her to fall and again worsen her injuries – for reasons unrelated to the 1999 incident.  The 2002 motor vehicle accident and her numerous falls were clearly intervening independent causes which broke the chain of causation from the 1999 accident to the present.”

This case underscores why it is so important for employers, carriers, third party administrators and self-insured entities to focus on subsequent health records in reopener cases.  Even in serious reopener cases, there is sometimes a rush to arrange a reexam in order to reach closure without spending the time and effort on discovery and investigation into interval activities and injuries.  In this case, the subsequent investigation saved the employer a great deal of money.  Respondents are well advised to order a new ISO and ask on reopener interrogatories about subsequent work and non-work injuries as well as subsequent surgeries. This case points out that the medical records are often more accurate than a petitioner’s recollection of an old injury. While petitioner stressed that the 2002 car accident was a knee injury, — and it primarily was — the records showed treatment to other parts of the body as well.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

Reconstruction of Wages is an issue in many New Jersey workers’ compensation matters.  In a case handled by Capehart Scatchard and successfully argued by Keith Nagy, Esq., the Appellate Division stressed that petitioner has to prove permanent impairment of full-time working capacity arising from a work injury before wages must be reconstructed. The case is Lawson v. New Jersey Sports and Exposition Authority, A-4058-17T1 (June 26, 2019).

Petitioner, Ms. Lawson, had two jobs in 2009: one for the NJSEA as a stadium usher earning about $14 per hour and the other for Wal-Mart in a full-time position.  She broke her femur at work on the part-time job with the NJSEA I 2009 and had metal rods inserted into her leg during surgery.  She worked very few hours for NJSEA, so her wage was only $103.36 per week giving rise to a rate of $72.35 per week for permanency purposes.  Because petitioner had a significant injury consisting of a femur fracture and other leg injuries, the parties ultimately agreed that the disability was thirty three and one third percent.  Where the parties disagreed was on whether to do wage reconstruction.  That issue was the one that was tried fully.

Without wage reconstruction, the one third award amounted to $14,469.  With wage reconstruction, the one third award would have amounted to $72,300 because the $14 per hour wage would be reconstructed on a 40-hour per week basis to $560 with a rate of $392.  So reconstruction in this case really mattered:  $14,469 versus $72,200.  The difference was $57,531.

Petitioner testified at trial that after her accident on August 14, 2009, she took medical leave from Wal-Mart until April 2010.  When she returned to Wal-Mart, she did so with medical restrictions limiting her to part-time work.  Petitioner refused the company’s offer of part-time work and was let go.  She later reapplied to Wal-Mart for a full-time position but the company did not rehire her.  After she recovered from her surgery, she was able to return to her part-time job as a stadium usher for the NJSEA.

Petitioner collected unemployment from July 2010 to December 2012, certifying that she was ready, willing and able to work.  At the time petitioner testified at trial, she said that she could not do stocking of shelves and so was unable to get a job in other large stores.  She also testified that she felt she could work full time in a store but only if she did not have to climb ladders. At the time of her testimony, she was working part-time at a supermarket.  She admitted to doing a lot of physical work at home, mowing the lawn, cutting wood with a small electric chainsaw, walking a mile and swimming.

Two experts testified in the case on the issue of reconstruction of wages.  Dr. Tiger for petitioner said that petitioner could not do full-time work as a consequence of her injury at NJSEA.  However, he did not know that she was climbing up and down stairs as a stadium usher, and he did not know that she was swimming, walking a mile and doing some strenuous home activities.

Dr. Mercurio for respondent testified that petitioner had minimal residual disability from her injuries.  He felt that she could work full duty without restrictions.  He noted that petitioner had a second surgery in 2014 to remove hardware from her leg and observed that petitioner told physicians that she was “better than she was before.”  When Dr. Tiger examined, the second surgery had not yet taken place, so he really could not comment on this issue.

The Judge of Compensation found Dr. Mercurio to be the more credible medical witness.  The Judge noted that Dr. Tiger was not aware of several key facts in the case that Dr. Mercurio had been aware of.  The Judge stated that “petitioner was a very sturdy woman with a high level of physical strength and endurance and energy.”  This conclusion was based in part on the many home activities petitioner engaged in.  The Judge cited to the leading case on reconstruction of wages, Katsoris v. South Jersey Publishing Company, commenting that petitioner failed to prove that “she lacked potential for full-time employment under the Katsoris decision.”

Petitioner appealed to the Appellate Division and argued that she had not been able to return to full-time employment, which was proof in and of itself that her wages should be reconstructed. The Appellate Division disagreed.  The Court said, “petitioner did not prove that her injuries from the 2009 accident diminished her capacity to perform full-time work.”  The Appellate Division credited the Judge of Compensation in making appropriate findings in the case.

This is a helpful decision to practitioners because it shows that it is not enough to prove wage reconstruction simply by stating that one has not returned to full-time work.  Physical capacity of the worker both in and outside work must be considered.  The Judge in this case found that the petitioner could in fact do full-time work based on the physical activities that she engaged in at home, and respondent’s expert made the point that she had no restrictions against doing full duty work.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

By:  Alfred Vitarelli, Esq., Shareholder, Stark & Stark

Yes, it’s me again with yet another nightmare-inducing minefield to trap the unwary practitioner. Well, perhaps that’s an extreme analogy. But since we are dealing with Department of Defense-based health coverage, I believe a military-themed introduction is a necessity. Ok, I’ve got it: think of these liens as submarines, lurking underwater, undetectable unless the destroyer above uses sonar to locate it. Hmmm…I think I’ll take a break and order up “The Hunt for Red October,” or that Burt Lancaster/Clark Gable classic, “Run Silent, Run Deep.” Ok Al, enough with the movies, get down to business…..”one ping only.” Sorry, just had to get a line from a movie in here. Sorry if it makes no sense. Watch one of the above movies!

Ok, why do I say a proactive approach is needed? Well, for one, many Petitioners are covered by VA health insurance or Tricare. Tricare, you say? Yes. Tricare is a Department of Defense health benefit plan for uniformed service members, retirees and their families. They are established under CHAMPUS, the Civilian Health and Medical Program of the Uniformed Services. Both VA health coverage and Tricare are secondary payers with respect to workers’ compensation treatment and both have rights of subrogation under federal law. The primary source of the right of recovery is found in the Federal Medical Care Recovery Act, 42 U.S.C 2651. However, both the VA and Tricare have additional statutory and Code provisions addressing recovery procedures, which will come up while researching these lien issues.

Both the Veterans Administration and Tricare have a right of recovery of any amounts paid for ineligible treatment. For purposes of this article, ineligible treatment is treatment provided for a work-related injury. Simply put, both entities have statutory rights to recover the cost of treatment provided for a work-related injury or condition to a covered beneficiary. Keep in mind, however, that while the VA covers veterans, Tricare covers service members, retirees and their families, so Tricare’s right to recovery of course extends to all such covered persons. This places an additional responsibility on the practitioner, which I’ll discuss later.

The VA collection rules are found in 38 CFR 17.106. It states in part:

“(a)(1) VA has the right to recover or collect reasonable charges from a third-party payer for a nonservice-connected disability in or through any VA facility to a veteran who is also a beneficiary under the third-party payer’s plan.” Later, this section defines a third-party payer as “…an entity, other than the person who received the medical care or services at issue…responsible for the payment of medical expenses on behalf of a person through insurance, agreement or contract.” A listing of third-party payers includes: “(F) workers’ compensation program or plan sponsor, underwriter, carrier or self-insurer.” Pretty comprehensive, no?

Tricare’s collection rules are found in 32 CFR 199.12. The General statement (a) states:

“This section deals with the right of the United States to recover from third-parties the costs of medical care furnished to or paid on behalf of TRICARE beneficiaries. These third-parties may be individuals or entities that are liable for tort damages to the injured TRICARE beneficiary or a liability insurance carrier covering the individual or entity. These third-parties may also include other entities who are primarily responsible to pay for the medical care provided to the injured.”

Please note the emphasis on reimbursements from third parties. This requires the respondent to also be actively involved in the handling of such liens, at least in my opinion.

The recovery provisions under the rules for both the VA and Tricare are very similar. Each allows suit to be filed in federal court against a third-party payer within six years of the last day of the provision of the medical care or services for which recovery or collection is sought. However, they are much too extensive to include them here. I therefore recommend they be read in full, as they also refer to other statutory and rule provisions which will also impact the handling of WC matters involving VA/Tricare payments. By way of example, I’ll just point to one:

VA/Tricare “reasonable charges,” determined in accordance with federal law and regulation, “shall be” judicially noticed. See: 44 U.S.C. 1507. The government is not required to litigate reasonableness of administrative fixed rates. Billing rates are not subject to challenge for unreasonableness or arbitrariness. There are many more which may impact any case at a given time, so when dealing with these liens, do the research!

Now it’s time for some practical ideas for handling claims involving the VA/Tricare. As I noted earlier, many people are covered by the VA or Tricare. For the petitioner’s attorney this will require asking a potential client at the first interview if he or she is covered by either program. In my prior article in this blog on Medicaid/NJ Family Care I pointed out that even people working for employers which provide excellent health care are covered by those programs due to the cost of the employee’s share of premiums, co-payments, etc. The same situation exists with Tricare. Just the other day I interviewed a woman working for a company with good employer-provided health care. However, she was covered by Tricare, since her husband was retired from the Navy.

Another issue I really need to address is whether there are requirements in these recovery Acts or Codes placing a direct responsibility on an attorney to place the VA/Tricare on notice of a WC claim filed by a beneficiary where some treatment has been provided by one of these programs. While I am unaware of any such written requirement, keep in mind that the beneficiary (your client) does have a duty to cooperate in recovery efforts. Further, the attorney has a duty to properly represent the client. So, my position is yes, notice should be given even if no inquiry from either program has been sent to the attorney or client.

I believe respondents need to be pro-active here. I previously quoted provisions of the VA and Tricare recovery Codes. Both clearly state recovery is against a third party payer, and define a third party payer as including workers compensation programs and carriers. In addition, I need to cite a further VA Code provision:

38 C.F.R. 17.106 (c): VA’s right to recover or collect is exclusive. The only way for a third party payer to satisfy its obligation under this section is to pay the VA facility or other authorized representative of the United States. Payment by a third party payer to the beneficiary does not satisfy the third-party’s obligation under this section. (Emphasis added.)

This section, referring to an obligation on the part of the third party payer, emphasizes the need for the respondent to be pro-active, in my opinion. On its face, this section prohibits a settlement whereby the respondent pays petitioner a sum of money to satisfy a VA/Tricare lien. Its import, however, emphasizes the respondent’s role in satisfying a lien. Respondents therefore need to act quickly in determining if a claimant is covered by VA/Tricare as early as possible following receipt of a First Report of Injury. In claims where the petition is the first notice of claim, respondent’s counsel should immediately determine this information.

In closing, I’ll first provide two websites to visit when faced with payments by the VA/Tricare. For the VA I found the VA’s Office of General Counsel’s website quite helpful. This is www.va.gov.ocg/collections.asp. For Tricare I suggest visiting their website at www.tricare.mil and go to Forms/Claims/ThirdPartyLiability.

I’d also like to state that of the various liens discussed in my articles, those from the VA and Tricare, seem to be less understood than others. It is hoped this article will alert practitioners to them. All parties must recognize the importance of identifying and addressing payments made by one of these Department of Defense health care programs. The statutes and rules are extensive and complex but do provide guidance in navigating the shoals of DoD liens. There, I closed with another naval reference!!

(Editor’s Note:  Many thanks to Alfred Vitarelli, Esq., a frequent contributor to this blog, for an incredibly helpful explanation on how to deal with VA and Tristar liens.  This is an area of law that employers, adjusters, and practitioners must understand, and the rules are not exactly the same as those with CMS and Medicare.  Keep this blog by your side because we will all be dealing with VA and Tristar liens on a fairly regular basis.)

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

Sometimes tensions flare up between employees resulting in physical altercations with unexpected consequences.  A case in point is Bhut v. Aluminum Shapes, No. A-4652-17T1, 2019 N.J. Super. Unpub. LEXIS 1322 (App. Div. June 10, 2019).  The petitioner, Mr. Bhut, worked as a technician fixing manufacturing equipment.  He said that on May 21, 2017, he entered the employee locker room.  A co-worker, Mr. Stevens, had his feet up on a bench.  Bhut said he asked Stevens to move his legs but Stevens refused.   Bhut jumped over Stevens’s legs but his feet caught Stevens’s leg in the process.  According to Bhut Stevens threw a cup of soda at Bhut. 

Petitioner said he left the room but came back a few minutes later to wash his hands.  He ran into Stevens outside the locker room in a narrow walkway.  Stevens was holding a pizza box.  Bhut testified that Stevens pushed the pizza box at him as Bhut passed Stevens.  To keep the box away from him, Bhut swung his arm toward Stevens and hit a hat on Stevens’s head.  Stevens then threw petitioner to the floor.  Bhut maintained that he was not trying to strike Stevens when he swung at him.

A completely different version of facts was advanced by Stevens, who said that Bhut never asked him to remove his feet from the bench.  Stevens said Bhut pushed and kicked his legs off the bench. He claims that when he stood up, petitioner stepped in front of him and caused the Coke drink to fall on him.  Co-workers separated them.  Stevens said Bhut then returned a few minutes later and Bhut came at him.  Stevens side-stepped with the pizza box, and the next thing he knew Bhut struck him in the back of the head.  Stevens said he grabbed Bhut’s arm and the two men bounced off the locker and landed on the floor with Stevens on top of Bhut.  Stevens said he never pushed the pizza box onto Bhut.

There was no dispute that Bhut injured his shoulder in the fall.  Bhut filed a motion for medical and temporary disability benefits resulting in an order for benefits in the amount of $15,583.54.  The respondent appealed the decision of the Judge of Compensation.  Respondent argued that Bhut deliberately struck Stevens leading to the fall, which caused the shoulder injury.   As such, respondent argued that this was in the nature of a deliberate assault, disqualifying Bhut from recovery.

The Judge of Compensation found that the altercation between the two men arose during the fulfillment of work duties or doing something incidental to that, namely eating lunch on premises.  The Judge noted that there was no evidence of hostilities between the two men outside work.  Therefore there was no personal animus between the two men.  The Judge also rejected the argument that Bhut intentionally assaulted Stevens.  She said that neither man had any willful intent to injure the other.  She said, “The reactions of both Stevens and the petitioner were in response to what each felt was aggressive behavior.”  She found Mr. Bhut credible in his testimony that he did not intend to strike Stevens when he pushed the pizza box away from himself.

The Appellate Division affirmed the decision below.  The Appellate Division viewed this as an injury arising from work tensions.  The Court deferred to the Judge of Compensation on her findings of credibility of the witnesses and her finding that there was no intent by either man to deliberately hurt the other.  She found that each man was trying to protect himself from the other.

This decision illustrates a number of important rules.  First, the trial judge is in the best position to assess credibility of witnesses in factual disputes.  Secondly, when a series of escalating tensions occurs, it is very difficult to find that one party deliberately assaulted the other party.  This was not a case where an employee decided to assault a co-employee without prior provocation or tensions.  The Judge viewed these facts as a series of two separate events minutes apart where each party saw the other as the aggressor and tried to defend himself.  The decision of the Judge of Compensation made good sense, and the Appellate Division properly deferred to the Judge below on determination of credibility.  Perhaps the case could have been viewed as one involving “horseplay.”  That rule says that the victim of horseplay is always covered for injuries, and the aggressor may also be covered under certain circumstances.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

A cardinal rule in workers’ compensation is that an employee cannot sue his or her employer in civil court for a work injury except for rare circumstances involving intentional harm.   But what if the employee has two employers?  Does that rule apply to both employers?  The answer is yes, the rule applies to both employers, so the focus in many cases is on whether there really is an employer relationship to begin with.  The case of Carabello v. Jackson Dawson Communications, Inc. and Transcend Creative Group, LLC, A-3294-17T3 (App. Div. March 26, 2019) provides some helpful insight on the requirements to establish “the second employer.”

Mr. Carabello worked for the New Jersey Sports and Exposition Authority as a teamster truck driver. The NJSEA contracted with Transcend and Jackson Dawson for a Mercedes Benz event at the IZOD Center which the NJSEA owned.  Carabello was the only forklift operator at the IZOD Center during the event.  NJSEA assigned him to operate the forklift to unload the trucks of Transcend and Jackson Dawson Communications.  Carabello was told to report to Jackson’s head man for further instructions in securing the tent structure for Transcend and Jackson. 

The head man for Jackson instructed Carabello to transport barrels filled with water using the forklift.  Carabello proposed that it might be wiser to transport the barrels while they were empty but that suggestion was not followed.  While loading the filled barrels on the forklift, two barrels fell off.  As Carabello moved the last of sixteen barrels off the forklift, he felt a pop in his shoulder.  His injury was promptly reported to the NJSEA, and the NJSEA paid workers’ compensation benefits.

Carabello then attempted to sue Transcend and Jackson Dawson for negligence in a third party action.  Jackson and Transcend argued in essence that Carabello could not bring a civil suit against them because he was their “special employee.”  The trial judge agreed and barred the civil suit, leading to an appeal by Carabello.  In his appeal, Carabello argued that the five-pronged test of a special employee did not apply to his situation.

First, he argued that there was no express contract between Carabello and Transcend and Jackson.  Second, he argued that he was doing the work of the NJSEA.  It was on NJSEA property.   The Appellate Division agreed with Carabello on both of these points.

Next, Carabello argued that his work was not controlled by Jackson and Transcend.  The Appellate Division said this point was unclear.  NJSEA told Carabello to use the forklift to help the exhibitors set up the event.  Jackson and Transcend told him to move the filled water barrels to help secure their tent.  On balance, the Court felt that NJSEA really controlled the work.  “Plaintiff testified the scope of his employment for NJSEA included helping production personnel with event setup, which involved operating the forklift and assisting others during the production process.”

Fourth, Carabello argued that he was paid by NJSEA.  The Court noted that Transcend and Jackson paid a fee for operation of the forklift, but they did not pay Carabello’s salary. 

Lastly, Carabello argued that he could not be fired by any entity other than the NJSEA.  The Court agreed that the license to produce the exhibition at the IZOD center did not provide Jackson and Transcend with the authority to hire or fire Carabello. 

For these reasons, the Appellate Division reversed and allowed Carabello to sue Jackson and Transcend in a civil suit for their alleged negligence in contributing to his shoulder injury.  One key distinction between this case and other special employee cases involving assigned nurses is that Carabello was working on NJSEA property when he was injured.  In many of the nursing cases where special employment status is found, the nurses work on hospital property under direct control of the hospital.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

It can be challenging to prove that a fairly common cancer occurring frequently in the general population is work related.  The case of Proscia v. Advanced Biotech, A-3017-17T2 (App. Div. April 26, 2019) offers interesting guidance on how an injured worker can prove such a case.  

Frank Proscia worked for Advanced Biotech (AB) from 2005 until 2013.  The company manufactures and sells natural flavor ingredients.  During his employment, there was occasional flooding in his work site in Paterson, N.J.  When that occurred, he would wear waders to walk through space to secure manufacturing materials, which included drums filled with chemicals.  He would examine and sample many containers when they arrived and supervised pouring of chemicals by others.  His desk was 15 feet away from the sealed-off storage room where drums of chemicals were stored.

Petitioner testified that there were multiple spills of hazardous chemicals over the years he worked at AB.  The chemicals would adhere to his skin and clothing.  There was one spill of acetic acid in February 2011. That caused petitioner to be hospitalized on account of breathing problems at work.  He left AB in October 2013.  Two years later, petitioner was diagnosed with colorectal cancer, and he filed a claim petition alleging that his work exposures either caused or contributed to the cancer.

A key fact in this case was that the expert for each side agreed that there were about 1,000 chemicals to which petitioner was likely exposed, and several of those chemicals were suspected carcinogens. 

The petitioner’s expert testified that Acetaldehyde and Diacetyl are carcinogenic, and they were two of the chemicals to which petitioner was exposed.  In fact, petitioner’s expert said that Acetaldehyde is a Class One carcinogen.

Petitioner’s expert provided statistical information on colorectal cancers, noting that 11 to 15 percent of such cancers are related to workplace chemical exposures.  The expert added that petitioner, who was 42 years of age at the time, could not return to work due to his stage three or four cancer.  He said that his cancer was not yet at maximal medical improvement and petitioner required more treatment. 

AB’s expert disputed the testimony that Acetaldehyde causes cancer.  AB’s expert said that there were no studies establishing such a causal relationship.  The Court noted that respondent’s expert was an oncologist.  The Court noted that petitioner’s expert was qualified in the field of environmental and occupational health medicine.  Respondent’s expert did agree that some of the chemicals to which petitioner claimed exposure were carcinogenic. 

The Judge of Compensation found that it was more probable than not that petitioner’s exposure on the job caused his cancer.  The Judge ordered further temporary disability benefits as well as further medical treatment. AB appealed. 

The Appellate Division first observed that petitioner did not have to prove direct causation; aggravation or exacerbation of a condition is sufficient.   The Court also commented that the Judge of Compensation is in the best position to weigh the credibility of the expert’s testimony.  “He could, at his option, decide to give petitioner’s expert testimony greater weight than the expert who testified on behalf of AB.” For these reasons, the Appellate Division affirmed the ruling in favor of petitioner.

Petitioner had several key advantages at trial. First, the experts agreed that some of the chemicals to which petitioner was exposed were carcinogenic.  Second, petitioner proved by his testimony that he had likely exposure to certain chemicals. Respondent did not present lay testimony disputing anything petitioner said on exposure.  That left no real dispute that there was serious exposure to chemicals.

The Judge of Compensation seemed to accept that the two named chemicals were carcinogenic.  There was nothing in the Appellate Division record showing that respondent offered medical articles debunking any relationship between Acetaldehyde and cancer.  Under these circumstances, petitioner made out a very strong case.  For respondent to win in a difficult case like this, its expert needed to offer into evidence persuasive scientific evidence based on medical literature establishing that there is no known causal relationship to colorectal cancer.  Alternatively, respondent needed to contest the alleged exposure through lay testimony. 

In a difficult case like this, the best argument that respondent had was that its expert was far more qualified than that of petitioner to give an opinion on causation, as only respondent’s expert was an oncologist. There is nothing in the appellate decision addressing that point, however, so it is hard to tell if that was argued.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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.