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Patrick Malone began working for the Pennsauken Board of Education in 2007 as a custodian. He said he would sweep floors, take out the trash, clean the blackboards and desktops, remove gum and shoe marks from floors, sometimes climb ladders, and clean toilets, floors and walls. He also said in the summer he would remove furniture and filing cabinets and put them in the hallway so that classrooms could be cleaned. He said he did a lot of kneeling, stooping, and squatting, but he never said how frequently he did any of these tasks. He had been doing this work for many years with other employers. By 2012 he began to experience constant pain in both knees and was diagnosed with osteoarthritis in both knees. In 2012 and 2013 he had both knees replaced.
Malone filed an occupational claim petition against the Pennsauken Board of Education, alleging that his work duties aggravated his preexisting but asymptomatic osteoarthritis, requiring bilateral knee replacements. The Board of Education, represented by Capehart Scatchard, denied the claim.
Petitioner produced Dr. Ralph Cataldo, an anesthesiologist, as his expert. Dr. Cataldo said that he found objective findings consisting of surgical scars from the knee replacements and some swelling about both knees. He said that in his opinion the work duties aggravated petitioner’s preexisting osteoarthritis because petitioner was asymptomatic in 2007 and was symptomatic after performing work duties. He estimated 70% permanent partial disability in each leg.
Respondent produced Dr. Francis Meeteer, a family and occupational medicine physician, who testified that petitioner’s osteoarthritis condition was chronic, progressive and degenerative and due to the natural aging process, not to work.
The Judge of Compensation found Dr. Cataldo to be more credible. She commented as follows:
[w]hen called upon to make findings neither the Court or medical experts should ignore commonly known facts to wit: an extensive amount of bending, squatting, and lifting can cause increased discomfort in one’s knees. The Court finds the testimony of Dr. Cataldo satisfies the burden of establishing a causal connection with probability that Petitioner’s injuries were aggravated by his occupational duties.
The judge awarded petitioner 55% permanent partial disability credit 20% for prior disability plus one year of temporary disability benefits for the year petitioner was out of work because of his knees. The permanency award came to $109,214. Petitioner returned to work for the Board of Education.
Respondent appealed and argued that Dr. Cataldo’s opinion was a net opinion, meaning that he never provided any medical basis for his opinion on causation. The Court agreed, noting that there was minimal evidence in this case. “First, there was no evidence concerning how often and to what extent Malone engaged in the various physical activities about which he testified to perform his job duties. Simply to identify the tasks he performed and that they entailed “a lot” of kneeling, stooping, and squatting fails to impart any reliable information about how arduous and physically demanding Malone’s job actually was.”
The Court added that the medical evidence was also deficient. “Second, the only objective medical evidence Cataldo identified were the surgical scar and the swelling he found around each knee. Neither form of evidence indicates – and Cataldo did not explain – how Malone’s job duties aggravated the underlying osteoarthritic condition.”
The Appellate Division criticized the simplistic analysis on causation performed by Dr. Cataldo. “In the final analysis, the crux of Cataldo’s opinion is that, because Malone’s knees were asymptomatic before but became symptomatic after he began working for the Board, then his knee condition must have been caused by the tasks he performed for the Board.” The Court said that the record is devoid of the necessary objective medical evidence to establish a causal connection between Malone’s bilateral knee condition and his work duties.
For these reasons, the Appellate Division reversed the award and ruled in favor of the Board of Education. The Court did not remand the case for further findings.
This case is significant for practitioners and employers because it shows that the focus in occupational orthopedic claims, just like pulmonary claims, must be on medical or scientific evidence supporting or rejecting causation. In an occupational claim, unlike a traumatic claim, the claimant must show not only that the condition arises from work and occurs during work, but also that the medical condition is produced by causes that are characteristic of or peculiar to work in a material degree.
In the end, Dr. Cataldo based his opinion on timing, not medical analysis. It is clearly flawed reasoning to assume proof based on timing alone in an occupational disease claim. His contention was that there was causation merely because petitioner became symptomatic after working with a preexisting osteoarthritic condition. It is the sort of logic that would support a causal connection between the rooster crowing and the rising of the sun. As Lora Northen, Esq. of Capehart Scatchard has often stated in seminars, that sort of logic would mean that sleeping causes carpal tunnel syndrome because the numbness and tingling usually happen at night.
Petitioner lost this case because there was absolutely no testimony at trial regarding any medical studies or literature showing that bending, stooping or squatting worsens preexisting osteoarthritis to the degree that knee replacements are needed. In fact, the Arthritis Foundation promotes an exercise program for those with osteoarthritis. The question is the degree of physical activity which is helpful or harmful. In this case, the record was silent on the extent and frequency of physical activity engaged in by the petitioner.
This case was expertly handled by Adam Segal, Esq. of Capehart Scatchard with assistance on the trial and appellate briefs by the undersigned. The case can be found at Malone v. Pennsauken Board of Education, A-3181-16T1, (App. Div. June 29, 2018).
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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.
In Marano v. Clifford J. Schob, M.D., A-33915-16T2 (App. Div. June 20, 2018), the Appellate Division held that New Jersey’s lien provision does apply to funds that an injured worker received in a medical malpractice suit pursuant to the terms of a “high/low” agreement. The case affirmed a prior ruling in Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572 (App. Div. 2008) but dealt with a new regulation that was passed after the Pool decision.
The case stemmed from a work-related injury to a police officer employed by the Union Township Police Department. The Township was a member of the Garden State Municipal Joint Insurance Fund (GSMJIF). PMA was the third party insurance administrator for the GSMJIF. Officer Marano injured his back on July 12, 2010 arising from work and received $51,779.81 in workers’ compensation benefits, including $5,403.07 for nurse case management charges.
Marano filed a suit in the law division alleging that Dr. Clifford Schob was negligent in failing to advise him to visit an emergency room and was negligent in not properly diagnosing his condition. The parties to the medical malpractice suit agreed to arbitrate the suit with the agreement that following the arbitrator’s decision, plaintiff would receive at least $250,000 (the “low”) but no greater than $750,000 (the “high”). The arbitrator arbitrated the case over two days and found no cause of action against Dr. Clifford Schob and dismissed the law suit. However, based on the high/low agreement, plaintiff was paid $250,000 even though Dr. Schob was found not to be at fault.
The issue in this published decision arose because plaintiff refused to reimburse PMA Insurance Company and the Garden State Municipal Joint Insurance Fund its statutory two thirds of the $51,779.81 paid to Marano. The GSMJIF refused to compromise the lien, so plaintiff filed an order to show cause and a verified complaint in the Law Division seeking a declaration that the payment in the high/low agreement was not subject to any workers’ compensation lien.
The thrust of the argument made by plaintiff was that this issue was not the same as one previously decided in Pool above. Plaintiff argued that N.J.A.C. 11:1-7.3(a) was passed after Pool was decided. That regulation provides that a medical malpractice insurer must notify the Medical Practitioner Review Panel of any medical malpractice settlement, but not in a high/low agreement where the arbitrator found no liability on the part of the medical practitioner. That language excluding the notification provision for no cause decisions in high/low agreements was added in 2009 after Pool. Plaintiff argued that fewer high/low agreements will be negotiated if Marano is ordered to reimburse the GSMJIF. He said that future plaintiffs will have to demand higher “low” figures to take into account lien obligations.
The Appellate Division affirmed the trial judge stating: “That concern has no relationship to a compensation carrier’s rights under Section 40 to impose a lien on the recovery.” The Court noted that there is a strong public policy in New Jersey preventing double recovery. It said that “whether an alleged tortfeasor is ultimately held to be liable does not affect the enforceability of a lien.”
As to the nurse case manager fees, the court remanded to the Law Division to decide whether those charges should be considered medical expenses under the New Jersey Workers’ Compensation Act.
This case was an important win for employers, and it was handled successfully by Christopher Carlson, Esq. of Capehart Scatchard on behalf of PMA and the Garden State Municipal Joint Insurance Fund. The case shows that employers need to be prepared to sue to enforce their lien rights when plaintiff’s counsel refuses to reimburse the employer/carrier for their statutory lien. The JIF wisely refused to compromise its lien in this case and in the end prevailed at trial and on appeal.
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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 June 21, 2018 the New Jersey Assembly passed Senate 2145, which is a bill long lobbied for by counsel for injured workers. The measure passed by a 2-1 margin and now goes to the Governor for signature, the Senate already having passed the bill. The legislation makes a significant change in removing the incentive for employers to make voluntary offers of permanent partial disability without having to pay a counsel fee on the amount offered. The original legislation was passed in the 1920s and has stood the test of time – until now.
The law for the past 90 years was simply this: any offer of permanent partial disability made within 26 weeks of the last active medical treatment or return to work date to injured workers was not feeable. Neither the petitioner nor the employer paid a fee on the amount of a valid voluntary offer. Counsel fees to attorneys for petitioners were based only on amounts paid to injured workers in excess of the amount of the voluntary offer. Injured workers benefited by receiving payments while their case was pending in the Division. Those funds might help tide the worker over while the ultimate settlement was negotiated. The incentive to employers in making these payments was clearly avoidance of paying a counsel fee on the amount offered.
Under the new law to be signed by the Governor, a petitioner’s attorney is entitled to a fee on all amounts received by the injured worker if the attorney can prove an established attorney – client relationship pursuant to a written agreement prior to the date of the voluntary offer. In other words, the claimant’s attorney gets a fee on all payments of permanency made after the date of the written engagement letter.
Counsel for petitioners have long argued that the voluntary offer rule, also known as the bona fide offer rule, was inherently unfair because attorneys may have put in a great deal of time and effort on a case only to have their fee reduced by a substantial voluntary offer made within 26 weeks of maximal medical improvement or return to work, whichever is later.
It will be interesting to see how employers react to this legislative change. Some practitioners predict the end of voluntary offers except in truly rare cases. The incentive to employers for the past 90 years was to save on counsel fees by making early offers of permanency. Petitioners’ counsel as well as judges often request that employers make voluntary offers, recognizing that employers benefit by not paying a counsel fee on such early offers and that employees benefit by getting funds when they really need them. That incentive is now for the most part gone. Arguably, the new legislation hurts petitioners as much as employers. The winners are petitioners’ attorneys, who have fought for many years for this change in the law.
One practical problem for employers is this: an employer who is considering making a voluntary offer after the Governor signs this legislation has no way of knowing whether the injured worker has a signed agreement with counsel. There is no obligation to reveal this information on the part of the injured worker. Whether one has retained an attorney or not is confidential. Of course, if the employer or carrier has received a letter of representation prior to the offer being made, the employer will know that any voluntary offer would be feeable. In that situation, voluntary offers will almost never be made. But injured workers may or may not have counsel in the background. So there may be situations where an offer is made, and the employer will only find out at the end of the case whether the offer is feeable. An employer may think it is making a non-feeable voluntary offer only to be proven wrong at settlement when a valid attorney agreement is produced.
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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.
Twin Rivers Paper Company cannot be compelled to reimburse the costs of an injured worker’s medical marijuana because the federal Controlled Substances Act trumps the state’s Medical Marijuana Law.
Gaetan Bourgoin suffered a work related back injury while employed at Twin Rivers Paper Company in 1989 in the State of Maine. Eventually he received total disability benefits. He was not a candidate for surgery and tried numerous medications, including narcotics, to control his pain. Mr. Bourgoin suffered negative side effects from opioids, and he sought a certification to utilize medical marijuana.
Mr. Bourgoin filed a claim seeking to require Twin Rivers Paper Co. to pay the costs associated with medical marijuana. The company refused, stating the federal Controlled Substances Act barred it from paying for marijuana. The Maine Workers’ Compensation Board ruled in favor of the worker, Gaetan Bourgoin, and the state appeals court affirmed. Twin Rivers Paper Co. appealed to the State Supreme Court.
In a 5-2 decision, the Maine Supreme Court reversed in favor of the employer, finding there is a conflict between the federal and state law, and as a result, the Controlled Substance Act preempts the state’s medical marijuana law.
In reaching their decision, the court noted that federal law bars use of marijuana, and any other schedule 1 drug, even for medical purposes. Therefore, ordering an employer to compensate an employee for medical marijuana costs improperly requires an employer to aid and abet in the commission of a federal crime.
Justice Hjelm noted, “A person’s right to use medical marijuana cannot be converted into a sword that would require an employer to engage in conduct that would violate the Controlled Substance Act.”
The ruling will send the case back to the Workers’ Compensation Division to vacate the decision of the hearing officer and deny payment of medical expenses and services for medical marijuana. While this decision applies only to the State of Maine, the case is significant because the same rationale can be raised in other states that have medical marijuana laws.
The case can be found at Bourgoin v. Twin Rivers Paper Co., LLC, 2018 ME 77.
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Andrea Schlafer, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Ms. Schlafer concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation. Should you have any questions or would like more information, please contact Ms. Schlafer at 856.813.4140 or by e‑mail at aschlafer@capehart.com.
New Jersey public employees who are unable to work due to work accidents may apply for generous accidental disability pensions, providing approximately two thirds to 70% of pay with no federal taxes owed. The standards for an accidental disability pension are rather similar to those in a workers’ compensation case, as is shown by the recent case of Bowser v. Board of Trustees, Police and Firemen’s Retirement System, A-0568-16T4 (App. Div. June 13, 2018).
The case involved correctional officer, Kristy Bowser, who suffered a fall on ice outside the Mercer County Correctional Center. On the day of the injury Bowser parked her car on the employer’s property in an area reserved for corrections officers. She worked one shift already and was then asked to work a second shift. She asked a co-worker to cover for her while she retrieved feminine hygiene products from her car. She slipped on black ice near the jail where she worked while walking to her car. The Board of Trustees agreed that Bowser was totally and permanently disabled from working her job, that the disability was not caused by her own willful negligence, and that she was physically incapacitated from performing her usual duties or any other duty. However, the Board disagreed that this arose from the direct performance of her duties and therefore the Board denied her claim.
The Appellate Division reversed in her favor. It cited a prior case which said “Common sense dictates that the performance of an employee’s actual duties incorporates all activities engaged in by the employee in connection with his or her work, on the employer’s premises, from the formal beginning to the formal end of the workday.”
The Court added, “Just as restroom breaks at the work location during the workday ‘are necessary concomitants of an employee’s performance of his or her regularly assigned tasks,’ Kasper, 164 N.J. at 586 n.7, so was Bowser’s break to retrieve those necessary products. She remained on the MCCC premises, and had no intention of leaving. She obtained relief from a fellow officer so she could briefly leave her post, as she would if she had headed straight to the restroom. And, she was ‘on the clock,’ as she would be during a restroom break. Consequently, her accident occurred ‘during and as a result of the performance of her regular or assigned duties.’”
For these reasons, the Appellate Division reversed the Board and awarded the officer her accidental disability pension. Practitioners should note that accidental disability pensions are for work injuries only and are available to public employees. Non-work medical conditions cannot be considered in an accidental disability application, unlike less generous ordinary disability pensions. The standards for compensability in an accidental disability pension application for a public employee are similar to those in workers’ compensation. Generally in workers’ compensation, on premises injuries are compensable unless the activity of the employee constitutes a deviation from employment or the injury is idiopathic. Walking to one’s car during a break to retrieve something on the employer’s premises would be covered under New Jersey workers’ compensation law just as it was in this disability pension case.
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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.
Robert Stein worked for Atlas Industries. He tore his meniscus at work and ten weeks into his recovery he saw the treating surgeon, who allegedly said that Stein would not be released from work until August 10th. Stein admitted that the surgeon gave him a release slip to return to work on July 20th but to do only office work until August 10th. Stein actually gave that release slip to his employer. Around the same time, the treating surgeon advised Atlas Industries that Stein could return to work with light duty restrictions in two days. Atlas thought that Stein would return to work on the following Monday.
For his part, Stein thought that he had two more weeks of FMLA leave coming to him. He did not show up for work on Monday, nor the next few days, nor did he call in. On Thursday Atlas fired him for violating company policy in missing three workdays without calling in or providing notification.
Stein sued alleging violations of his rights under the FMLA because he was still within two weeks of the 12 weeks he was permitted under the FMLA. The district court ruled for Atlas, noting that while an employee is out on FMLA, he must comply with the employer’s notice and call-in policies. Stein appealed to the Sixth Circuit Court of Appeals.
The Atlas policy required employees to either return to work or call in once their doctor released them with light-duty restrictions. The handbook said that someone who was absent three consecutive days without permission or call in would be automatically discharged.
Stein argued that an employer may not require an employee to return to work once cleared for light duty if the employee still has not exhausted FMLA leave, citing to 29 C.F.R. 825.702(d)(2). The Court agreed with this principle but noted that Atlas’s policy required either return to work or call in, and Stein did not call in to report his intentions.
The Court of Appeals held that once Stein’s doctor verified that he was physically able to work, Stein had to call in at a bare minimum. “The fact that he ultimately could have turned down a light-duty assignment does not change this requirement.” The Court added, “Indeed, the handbook is unequivocal; it provides that ‘it is the employee’s responsibility to be on the job and keep Atlas advised when you are unable to work, whatever the reason.’”
The Court also rejected Stein’s argument that the company retaliated against him for using FMLA leave. It noted that Stein was not fired right after he sought FMLA leave. This did not happen until 10 weeks later when Stein had two weeks of FMLA leave left. Interestingly, however, the Court did allow Stein to go to the jury on another legal basis, namely retaliation and interference under ERISA. Stein had a son who suffered from a rare neurological condition and for whom the company had spent over $500,000 on medical expenses the year before Stein was fired. The Court noted that both before and after Stein’s firing, the company had publicly expressed worries about “skyrocketing” health-care costs in a series of employer notices.
The Court noted that Stein had worked for Atlas for nearly 20 years, had worked overtime when asked, and won a perfect attendance award in the past. The Court said, “In combination with Atlas’s documented concerns about skyrocketing health-care costs and its managers’ purported comments about Jordan (the son’s) claims, this evidence permits an inference that Atlas was motivated at least in part by its desire to be free from a medical-cost albatross.” The Court therefore allowed the ERISA claim to go to a jury.
The case can be found at Stein v. Atlas Industries, 2018 WL 1719097 (6th Cir. April 9, 2018).
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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.
Assessing permanent disability is such a vital aspect of every formal workers’ compensation claim petition. New Jersey is a loss of function state unlike the more common wage loss states. An employee can return to his or her job following treatment or surgery, perform the very same work tasks, and still remain eligible for a substantial award of permanent partial disability benefits if the individual can show a substantial impairment of non-work activities. In other states, if an injured worker returns to the employment, that generally ends the entitlement to workers’ compensation benefits.
New Jersey’s peculiar system of compensation raises an interesting dilemma for employers, lawyers, physicians and judges: how does one assess the extent of permanent partial disability in one who has returned to the very same occupation with no limitations at work? And how credible is it when an employee performs very physical work without restrictions but complains about difficulty mowing the lawn at home? Both sides in the case gather all the relevant medical records and send the injured worker for an IME, or even multiple IMEs, with physicians who specialize in assessing the extent of permanency. The medical records tend to drive the outcome, and all stakeholders in the process focus heavily on the objective studies: surgery records, MRIs, CT scans, EMGs, pulmonary function testing, and the like. But there is generally too much emphasis on the treatment that occurred some time ago as opposed to current level of function.
The emphasis on medical records and operative reports is understandable, but all too often practitioners, physicians and judges forget to evaluate the overall current function of the individual and instead make assumptions of disability based on the type of surgery that took place. One hears comments like this quite often: “I never settle a two-level fusion surgery for less than 35% of partial permanent disability;” or, “I never pay more than 27.5% for a one level fusion surgery.” There is a very substantial dollar difference between 30% and any percentage over 30%, so battle lines are often drawn at that particular percentage point. The focus should not be so much on the type of surgery that took place but on the level of function that the individual has at work and outside work. The assumption that many practitioners have that all extensive fusions must be rated at higher than 30% ignores the legal standard in New Jersey. Every case is different.
Why does this happen? Because it is easier for practitioners to evaluate the medical records than it is the actual level of function. We do not have depositions in New Jersey, and complaints contained in IMEs are so often cursory. Some IME physicians spend only a line or two on the activities that the individual can now engage in or has given up, while spending 95% of the medical report on cataloguing the treatment that occurred many months ago. Could one individual have more extensive limitations following a one level fusion than another individual after a three level fusion? The answer is yes, but one seldom sees this reflected in awards because assumptions about the impact of surgery tend to be self-fulfilling.
Case law in New Jersey makes it reversible error for a judge to say that he or she always awards a given percentage for a certain type of surgery. The appellate courts have consistently emphasized that when assessing permanency one must look at the impact of the injury on the work and non-work life of the claimant – not the type of surgery one has had. Has the individual returned to previous sports activities, gotten a second job, returned to work without restrictions, or taken on overtime work? Is the individual able to enjoy jogging, horseback riding, and more vigorous sports? These are the most important questions that apply under all three Perez decisions.
From a strictly legal standpoint, if an individual had a two-level fusion surgery and came to court to testify that he could do everything now that he could in the past and had no restrictions, no award of permanency would be warranted. Evaluating physicians make the same fundamental mistake all the time, raising estimates of disability on individuals based on the number of herniated discs involved, or the type of shoulder surgery, without focusing on what the injured worker actually does or cannot do at home and at work. When reserving a file, practitioners and adjusters have to focus on the medical treatment because it is early in the case, but in the end the focus must be on the actual level of function when all treatment has ended. One can make a strong argument that the system tends to evaluate medical records too much and not the people whose records are being evaluated sufficiently.
What does this mean for employers? If employers wish to reduce permanency awards, they need to address the following: how has the work injury impacted the level of function at work and outside work? If an injured worker has minimal complaints following a two-level fusion surgery, and is functioning well at home and at work, the award should be fairly modest. It should not climb over 30% just because most similar surgeries have resulted in high awards. If the level of function at work and at home is impressive, It should not matter that the surgery involved two levels. It is really a mistake to assume that a given type of surgery is worth a preset percentage. While the system has evolved that way, it is not true to the statute at all.
Surveillance can be helpful in lowering permanency awards if the surveillance shows that the individual is performing at a high level of activity outside work. What can the employee do in terms of sports and hobbies after MMI? We all know people who have had extensive knee, back and shoulder surgery outside workers’ compensation, and many return fully to the activities that they used to engage in. After all, surgery does sometimes restore function completely or nearly fully. The results of functional capacity exams done after MMI are often a great indicator of level of function and should be considered by the parties in a workers’ compensation case.
Employers should speak with supervisors to get a sense of what the individual is involved in socially and recreationally. It is very rare that an employer will bring in a supervisor or manager in the permanency phase of the case to testify regarding what an employee is able to do at work post-surgery. But that testimony can be crucial if it contradicts statements that the injured worker cannot engage in certain physical activities. On high exposure cases, this should be considered. Proving a normal level of function at work and outside work is the best way to counter the pre-conceived notion that every two-level fusion or frozen shoulder case must be worth 35% to 40%.
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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.
The failure to report a claim in a timely manner generally leads to powerful defenses that help employers prevail in workers’ compensation court. But lack of timely notice is seldom one of those defenses in New Jersey. That sounds like a conundrum. Shouldn’t lack of timely notice be the first defense that jumps to one’s mind when a claim is not reported within 30 or 60 days? It should, but unfortunately the way the New Jersey notice statute is written, employers almost never win on that limited defense. Employers do often win cases that are not timely reported for completely different reasons discussed below.
Think of lack of timely notice under N.J.S.A. 34:15-17 as an ironclad rule. A worker could legitimately have a work injury on January 1, 2018, but if that employee for whatever reason fails to report the work injury within a certain period of time the employer automatically wins. Here’s the rub: the New Jersey statute allows so many extensions on reporting that the notice defense is generally toothless.
The statute begins by stating that an employee must report a work injury within 14 days, and no compensation is due until the employer becomes aware of the injury. That sounds good until you read the rest of the provision. If the employee reports the claim after 14 days but before 30 days, the employer only wins on notice if it can show it suffered prejudice due to the late reporting. But wait – the statute next proceeds to water down the previous language even further. If the employer becomes aware of the injury within 90 days and there is no prejudice to the employer caused by the late notice, the employer cannot win on the notice defense.
In effect this notice provision has two meaningless stages: 14 days and 30 days. Proving prejudice to the employer is not easy, so employers are effectively left with a 90-day notice rule. Further, the statute does not define what the word “prejudice” means, and there are really no cases on it. Frankly, it is unfair to employers that the statute allows up to 90 days to report a claim. How can an employer investigate any claim that is reported one month or even several months late? Memories fade, and potential witnesses forget. This practitioner recalls only one trial in decades where the employee actually testified to not reporting the injury to her employer or anyone in supervision for more than 90 days and therefore lost her case.
Yet failure to report a claim in a timely manner should raise red flags and almost always leads to powerful defenses. The two main defenses that should leap to an employer’s mind when a claim is not reported timely are first, that there is no evidence that an accident happened, and second that even if an accident did take place, it was not significant enough to account for the present pathology. Most employers train their employees over and over to report work injuries within 24 hours. So when an employee reports a work injury 35 or 40 days after it happened, it seldom makes any sense. An employer will deny such a claim on the basis that there was no accident. If it did happen, why would the employee who has been trained to report claims within 24 hours wait so long to notify the supervisor or HR representative? Often that same employee has promptly reported other work injuries that have occurred over the years, so the employee clearly knows the reporting procedures.
Suppose an employee says that he bumped his knee at work on July 1, 2017 and felt pain in his knee right away but it quickly diminished. He never treats in July or August. He does not lose any time at all from work. In mid-September, he reports for the first time to his employer that he bumped his knee at work 75 days ago and needs to see a doctor. The employer asks why the employee waited so long. The employee says he thought it was nothing at all, so he never mentioned it to anyone. The pain went away and was barely noticeable for months. But in the past week the knee has become very painful. An MRI shows a medial meniscal tear that needs surgery. The employer probably will not win on the technical notice defense because the notification came within 90 days and the employee will argue that there was no prejudice to his employer by the delay. Yet this claim should be denied, and the employer may very well prevail. Here is the issue: how could the bumping incident on July 1st that caused no lost time and led to no treatment for months be responsible for a meniscal tear that manifests in mid September?
Causation is often the dominant issue in delayed reporting cases. The employer will want to look into past medical treatment to see if the employee has a history of knee problems. Perhaps this is a recurring issue with the employee. The employer will look into activities between July 1st and September which the employee engaged in as possible causes for the tear. What sports or activities did the employee engage in during that bridging period? Does the employee jog or work out at a gym? A medical expert will be asked to give an opinion whether bumping the knee in July which led to no treatment for months was the likely cause of a meniscal tear that shows up in mid-September. Was the mechanism of injury (bumping the knee) consistent with a torn medial meniscus? Is it likely that a tear occurred on July 1st with no need for initial treatment and caused minimal pain for months only to become very painful in mid-September? These are valid questions for the expert.
This sort of fact pattern happens quite frequently. Employers should not be dismayed when they learn that New Jersey allows notice sometimes up to 90 days. That does not mean delayed reporting cases are compensable. It just means that the employer will not win on the defense of notice. The stronger defense is not lack of timely notice but whether there is any causal relationship between the alleged injury and the present knee pathology. Good discovery and investigation may also lead the judge to conclude that there is insufficient evidence of any work accident at all.
In short, employers should continue to stress the need to report injuries within 24 hours. It doesn’t matter that the New Jersey notice statute is exceptionally weak. A timely reporting policy is very important and helpful to both employers and defense counsel. Such a policy helps win cases because when an employee waits 15, 30, or even 60 days to provide notice in the face of a prompt reporting policy, it often suggests that the incident may never have happened or that the incident was simply inconsequential.
Thanks to our friend, Scott Tennant, of Arthur J. Gallagher for bringing this topic 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.
In a rather unique unreported case, the Appellate Division recently held that a drive to the normal work site can be considered compensable on the facts in Minter v. Mattson,A-1916-15T4 (App. Div. May 10, 2018). The case involved a kitchen worker, Antoine Minter, who called out of work due to a heavy snow storm that started the night before. Minter advised his supervisor, Dan Beggs, the executive chef, that he had to miss his morning shift since the morning bus to work was not running on account of the snow storm.
The food service in the dining hall was essential, so the dining director, John Lear, came up with an alternative plan to get Minter to work. Lear contacted Beggs, who advised the dining supervisor, William Mattson, to pick up Minter on the way to work since both Minter and Mattson lived in the same town. According to Minter’s testimony, Mattson told him that Beggs made clear that Minter had to come in during the snowstorm. Minter testified that he thought he would be fired if he refused. The two men had ridden together to work before. Mattson picked up Minter while the storm was still heavy and roads were ice-packed. Mattson lost control of the car he was driving, entering the path of an oncoming pick-up truck. In the collision, Minter suffered two broken legs, fractured ribs, and a deep laceration to his left arm.
The case was heard in Superior Court because Minter tried to bring a civil suit against Mattson and his employers. The outcome of the civil suit depended largely on whether the two men were in the course of their employment. The employers argued that Minter’s only remedy was workers’ compensation and moved to dismiss the civil law suit. Later the workers’ compensation carrier for the employer, Manufacturers Alliance Insurance Company, was joined in the suit, and the compensation carrier argued that Minter was not in the course of his employment because he was just on his way to work. The compensation carrier argued that travel to and from work is excluded under N.J.S.A. 34:15-36. The special mission exception only applies to trips away from the employer’s place of business.
Minter argued that he was compelled to perform an activity that he would not have otherwise engaged in, since he had called out that morning. He relied on the case of Lozano v. Frank Deluca Constr., 178 N.J. 513 (2004), which held that an otherwise excluded activity may be deemed compensable if the employer compels the activity and if the employee has a reasonable basis to believe that participation in the activity is compelled.
The compensation carrier argued that the principle of compulsion could not be applied to drives to and from work because attendance at work is compelled for all employees. All employees are subject to termination if they fail to report to work. But the Appellate Division disagreed: “In one sense, travel to and from work is always compelled. Employers set work schedules and employees are generally expected to comply. Those who do not comply usually risk losing their jobs. But, the compulsion in Minter’s case was specific and exceptional. Minter had already called out for the day. Thus, if he could establish that his employer compelled his non-work-related activity – the journey to work in a co-worker’s vehicle on a day he had already announced he would not work – the accident would be covered.”
The Appellate Division also noted that Minter could have argued that he was involved in a ride-sharing arrangement under N.J.S.A. 34:15-36. That would have rendered his commute compensable. However, his attorney never made that argument. The Court emphasized that Minter’s belief that he might have been fired had he refused to come to work was objectively reasonable. “In sum, Minter was injured in the course of his employment, despite the fact that he was not yet at his employer’s premises, because his employer had compelled his travel to work with a co-worker on a day he had already informed his employer he was not going to come in.”
This is the first Appellate Division level decision since the 1979 Amendments to the workers’ compensation law which has embraced the concept of compensability of a drive to a normal work site based on compulsion. There is no reported case standing for this proposition. The normal rule is that one is not at work until one arrives at premises owned or controlled by the employer. Even though it is an unreported decision, this case is important because it charts new territory on compensability. The factual situation addressed in this case is one that does occur for employers with some frequency given severe weather conditions in the winter months. It remains to be seen whether this logic is eventually embraced in a reported decision.
Our thanks to Ron Siegel, 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.
Jeremy Christensen worked as a patrol officer for the Warner Robins Police Department in the State of Georgia. He completed a required 12-week certification training program. However, he experienced shooting pains and leg cramps while driving on September 2, 2013. Nonetheless, he finished the program and began a one-year probationary period required for all new city employees.
Christensen experienced more shooting pains on October 8, 2013, and his hands shook uncontrollably. Another officer had to drive him home from work. He was advised to get a medical release from his physician, which he obtained from Dr. Al-Shroof. However, the doctor did not clear petitioner to drive, so Christensen was assigned to a light-duty desk position in the Criminal Investigations Division. Eventually, Dr. Al-Shroof cleared petitioner to work with no restrictions except for a continued restriction against driving.
The City documented four specific disputes with Christensen during the one-year probationary period, the most serious of which was that Christensen only entered 10 of 270 supplemental reports to the CID’s electronic case management program in 2014. As a result of these four disputes, the City terminated the employment of Christensen for unsatisfactory performance.
Christensen sued alleging disability discrimination. The City in turn argued that Christensen was not a qualified individual under the ADA because he could not drive, and driving was admittedly an essential job function for a patrol officer. Christensen disagreed and argued that he was able to work light duty for 10 months, and that he was qualified to perform the light duty position. He seemed to argue that he was entitled to indefinite light duty. The Court disagreed. “The City accommodated Christensen’s disability by giving him light duty work that did not require him to drive. . . . That accommodation did not enable him to perform the essential function of a patrol officer; he still could not drive.”
Christensen further argued that the City could have continued him on light duty, and its past efforts to accommodate his driving restriction showed that the City could make long-term accommodations. The Court again disagreed. “Further, the City’s past accommodations, which exceeded the requirements of the ADA, do not bind the City to anything outside the requirements of the ADA.” The Court also agreed that the City offered valid, non-discriminatory reasons for terminating Christensen’s employment.
For these reasons, the Court granted the City’s motion for summary judgment. The case shows that the elimination of an essential job functions is never required. Christensen had to prove he could perform all the essential job functions. The Court said that the mere fact that the City tried to accommodate Christensen for a lengthy period of time could not be held against the City. This case can be found at Christensen v. City of Warner Robins, GA., 2018 WL 1177250 (D. GA 2018).
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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.