State News : New Jersey

While the ADA does not require an employer to inquire whether an employee needs reasonable accommodation, the FMLA does require an employer to reasonably determine whether the FMLA may apply to a leave request which does not even mention the FMLA.  This burden can be very onerous on an employer as one can see in a recent New York case, Coutard v. Mun. Credit Union, 2017 U.S. LEXIS 2322 (2^ndCir. February 9, 2017).

The facts were very simple.  The plaintiff worked for MCU, a financial institution, and on January 22, 2013, plaintiff took leave from MCU to care for his 82-year-old grandfather, who had been taken to a hospital on January 22, 2013.   Mr. Coutard’s grandfather was discharged from the hospital on January 23, 2013 with bronchitis, but Coutard believed his grandfather, Mr. Dumond, was seriously ill and should not be left unattended.  He sought leave until he could obtain the assistance of a home health aide.

When Mr. Coutard requested leave, he did not mention that he had been raised by Dumond beginning at age four when Coutard’s father died, until age 14.  MCU advised Coutard that the FMLA did not apply to grandparents and declined the request for leave.  It is undisputed that the term “parent” includes not only a biological parent but also “an individual who stood in loco parentis to an employee when the employee was a son or daughter.” 29 U.S.C. 2613.

MCU also suggested that Coutard apply for a short-term leave of absence under a separate MCU personnel policy.  Coutard did not make any such application and was terminated on February 4, 2013.  Coutard later sued for interference with his FMLA rights.

The federal district court ruled in favor of MCU but the Second Circuit Court of Appeals reversed based on the following language:

[W]e conclude that the obligation of an employee to give notice of his need for FMLA leave is not the obligation, imposed by the district court on Coutard, to provide the employer with all of the necessary details to permit a definitive determination of the FMLA’s applicability at or before the time of the request.  Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply.

Translation:  the employer had to ask Coutard whether his grandfather raised him.  In making this ruling the Court of Appeals distinguished an identical case which went the other way in favor of the employer, Sherrod v. Philadelphia Gas Works, 57 F. App’x 68 (3d. Circuit 2003).  The Court distinguished the Sherrod case, which also involved leave to care for a grandparent, by saying that the Department of Labor changed regulatory language in 2009.  The regulation used to say that an employee had to “explain the reasons for the needed leave so as to allow the employer to determine that the leave qualifies under the Act.”  In 2009 the regulation at issue was changed to state that an employee need only provide sufficient information to indicate that the FMLA may apply. 29 C.F.R. 825.303.

While the new language seems very similar to the old language, the Second Circuit Court of Appeals felt that the change was significant.  The Court concluded that this ever-so-subtle change in language shifted the obligation to the employer to ask further into the relationship between the employee and the grandfather.  For these reasons, the Second Circuit Court of Appeals reversed judgment for MCU and remanded the case for trial.

The decision will come as a surprise to many employers.  When an employee asks for leave to care for a grandparent and never mentions that the grandparent raised the employee, an employer will have no way to know any of this history. Only the employee knows this information.  According to the Second Circuit Court of Appeals, the employer now can be held liable for violating the FMLA, as in this case, if the employer does not know the law well enough to ask further about the past relationship between the employee and his or her grandparent. The case imposes no burden on the employee to volunteer this information initially.

The reality is that this was a situation where neither party really did anything wrong.  No violation should have been found.  It would be unreasonable to expect the plaintiff in this case to know the in loco parentis definition of a parent under the FMLA, but the plaintiff did certainly know that his grandfather raised him for 10 years and never mentioned this. In response to the leave request, MCU offered plaintiff a leave of absence under another policy but the plaintiff never pursued that option.   Yet MCU was held potentially liable for an FMLA violation for not asking detailed historical questions about the employee’s relationship with his grandparent.

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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. 

One of the most controversial issues in New Jersey workers’ compensation has to do with whether an injured worker who has been fired is entitled to temporary disability benefits.  The leading case is Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), certif. denied, 188 N.J. 402 (2006).   That case was a true disrupter because until it was decided, the general consensus was that the employer paid temporary disability benefits post-termination until the point of maximum medical improvement.

But where did the rule in Cunningham come from? The roots of the Cunningham decision rest in Outland v. Monmouth-Ocean Educ. Serv. Comm’n, 154 N.J. 531 (1998).  Outland was a Supreme Court case which focused on whether a teacher who was injured during the school year was entitled to temporary disability benefits over the summer months when the teacher would not have been working due to the closing of school.   The Supreme Court held that such a teacher is not entitled to temporary disability benefits in the summer months unless the teacher could prove that he or she would have been working in some other summer job.  Evidence of prior summer employment and an offer of upcoming summer employment would suffice, but without that evidence, the teacher would not be entitled to temporary disability benefits during the summer months, even if the teacher was actively treating for the workers’ compensation injury.

The theory in Outland is simple:  there is really no wage loss during the summer for many teachers, except for those who had a job lined up and now cannot perform it due to the work injury.  Eight years after Outland was decided, Mr. Cunningham tested the same waters.  He was fired from Atlantic States for reasons of work misconduct but then returned to the authorized workers’ compensation doctor who had been treating his knee.  The authorized doctor then recommended surgery on petitioner’s knee.  Cunningham sought temporary disability benefits for the period of his surgery, but the employer argued that he had no wage loss because he had been fired.  The Court agreed with the employer and ruled no temporary disability benefits were due unless Mr. Cunningham could prove that he would have been working in some other job but for the work injury.

This same rationale carried the day in Gioia v. Herr Foods, Inc., No. A-0667-10T4 (App. Div. October 11, 2011).  In that case the petitioner had a legitimate work injury, fracturing his foot stepping from his delivery truck. The company required a post-accident drug test, which came back positive, leading to the termination of petitioner, who was on light duty at the time.  The petitioner argued that he was entitled to temporary disability benefits because he was actively treating.  But the employer prevailed, arguing that petitioner had no wage loss since he had been fired for violation of the company drug policy, and he had no proof of another job offer.

Other cases have patterned themselves on the Cunningham case, and practitioners need to be aware of this line of cases.   The rule remains that an employer can deny temporary disability benefits following job termination unless the injured worker can prove that he or she would have worked in another position but for the work injury.  The Cunningham also case makes clear that it does not matter if the employee quit or was fired:  the same test applies, namely would the employee have been working some other job but for the work injury?

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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. 

Don Drysdale, a skilled carpenter, works for Craftsmen Trades and seldom goes to the company office in Mt. Laurel, N.J.  He generally spends weeks or even months working at major job sites.  On May 1, 2017 he drives his personal vehicle from his home in Cherry Hill, N.J. to a job site in Woodbridge, N.J. where a large commercial building is being constructed.  He has been working at that site for a month.  As he is driving up the Turnpike, a truck veers into his lane and strikes his vehicle, causing Mr. Drysdale serious injuries.  Is he covered for workers’ compensation purposes?

The starting point is to study the language of N.J.S.A. 34:15-36, which states that “employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work . . . provided, however, when the employee is required by the employer to be away from the employer’s place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the direct performance of duties assigned or directed by the employer; but the employment of employee paid travel time by an employer for time spent traveling to and from a job site or of any employee who utilizes an employer authorized vehicle shall commence and terminate with the time spent traveling to and from the job site.”

This first question to ask is whether this commercial site is the “employer’s place of employment?”  The answer to that question is probably no since Craftsmen Trades has an office in Mt. Laurel, N.J.  That is the employer’s place of employment.  The second question is whether this commute falls under the special mission exception cited above for those trips that are “away from the employer’s place of employment?”  The answer to this question is also likely no because this location in Woodbridge would qualify as a job site since Drysdale works there for weeks or months at a time.  So we have to consider what the test is for driving to and from a job site.

Based on the statutory language above, Don Drysdale’s drive is only covered if he is using an employer authorized vehicle or if he is paid travel time for the commuting segment of his day.  In this case, he is driving his personal vehicle, so he does not meet the “authorized vehicle” exception.  But we do not yet know whether he is paid travel time.  If not, the commute is not compensable.

One case which is helpful on this issue is Mahon v. Reilly’s Radio Cabs, Inc., 212 N.J. Super. 28 (App. Div. 1986).  In that case the injured worker, a New Jersey Transit employee, was traveling on a New Jersey Transit Bus, driven by defendant Cruz, from Hoboken to his place of employment.  He paid no fare as he was provided free transportation on all NJ Transit buses as part of his Collective Bargaining Agreement.   The bus stopped at a dangerous angle in the street, and when Mahon exited the bus and walked into the street, a cab driven by Cruz struck him causing serious injuries.  Mahon sued the cab driver and NJ Transit.  NJ Transit argued that petitioner was in the scope of his employment and therefore could not sue his own employer.  NJ Transit further contended that Mahon was provided free transportation in an employer authorized vehicle.  Both the trial court and the appellate court disagreed with these arguments.

First, the Appellate Division distinguished the “place of employment” from “job site” in the above statute.  “In this case before us, the plaintiff’s accident did not occur while he was traveling to a job site away from the employer’s place of employment.  Rather, he was injured while on the way to the place of employment.”  What this meant is that the language about authorized vehicle and travel time did not apply.  Secondly, the Court said that when someone is driving to his or her place of employment, it does not matter if the transportation is cost free to the employee.  “That he was provided free transportation on NJT buses as a benefit of his employment, which he could utilize in commuting to work, does not operate to bring this travel within the scope of his employment.”  The Court cited to Nebesne v. Crocetti, 194 N.J. Super.  278 (App. Div. 1984) for the proposition that an employer does not render a commute to work compensable just because the employer reimburses all travel expenses.

The analysis workers’ compensation practitioners should make when dealing with commuting issues is this:

1.       Was the employee commuting to the employer’s place of employment? If that is the case, the travel is not compensable, including alternate places of employment.  So if an employer has an office in Trenton, an office in Parsippany and an office in Harrisburg, PA., and throughout the year the employee has to drive to all three offices, the commute to any of these offices is not compensable because all three locations would qualify as an employer’s place of employment.

2.      Was the employee commuting to a job site? If so, this commute is only compensable if the employee was using an authorized company vehicle or paid travel time.

3.      Was the employee reporting to a location that is not the employer’s place of employment and not a job site?  If so, this commute will likely qualify as a special mission and the commute will be covered because it will be “away” from the employer’s place of employment.

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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 leave of absence can qualify as a reasonable accommodation under the ADA, but how long should employers consider granting such leaves?  In Echevarria v. Astrazeneca Pharmaceutical, LP, 33 A.D. Cases 673 (1^st Cir. 2017), some practical guidance emerges on this issue.  The case involved a Pharmaceutical Sales Specialist named Taymari Delgado Echevarria (hereinafter Delgado) who developed a small brain tumor in November 2010, followed by recurrent depression and anxiety.

On December 12, 2011, Delgado’s physician, Dr. Sanchez, recommended that Delgado take time off work for reasons of severe depression and anxiety.   She eventually received short term disability benefits retroactive to December 12, 2011.  Those benefits continued until March 11, 2012, but were terminated because Delgado failed to submit adequate documentation of her disability.  Human Resources then wrote to Delgado and advised her that she must return to work by March 22, 2012.  The letter made clear that if she failed to return to work, Delgado would be considered to have abandoned her employment.

Delgado did not return to work on March 22, 2012, so the HR rep offered her a severance package if she were to resign.  That conversation set Delgado back and caused her condition to relapse, according to Dr. Sanchez.  Astrazeneca then extended Delgado’s leave until April 29, 2012. Another letter was sent to Delgado advising that she must return to work by May 17, 2017 or be considered to have resigned.

Delgado did not return to work on May 17, 2012.  Dr. Sanchez wrote to the company HR rep stating that Delgado would need another 12 months of leave before she could return to work.  Eventually Delgado was terminated in mid-July 2012.  Delgado refused to accept a severance package and sued for discrimination under the ADA.  She argued that her request for leave constituted a reasonable accommodation under the ADA.  The Court said:

The combined effect of two aspects of this case convince us that Delgado has failed to show that her request for twelve more months of leave was a reasonable accommodation.  First, it seems doubtful that Delgado shouldered her burden of showing that the requested accommodation would have enabled her to perform the essential functions of her position.  Second, Delgado has not shown that additional leave for this duration is a facially reasonable accommodation. . .

In an interesting opinion, the Court considered the effect of such a request on the operations of an employer. “Compliance with a request for a lengthy period of leave imposes obvious burdens on an employer, not the least of which entails somehow covering the absent employee’s job responsibilities during the employee’s extended leave.”

This case makes sense.  While it does not answer what the outcome would have been had a shorter period of time been requested, it does provide useful guidance for employers in requiring the employee to show that the requested accommodation would allow the employee to perform the job and is a reasonable request.  Certainly a request for three months of leave would be considered by most courts to be reasonable, just as a request for one year would be considered unreasonable. The gray area is in between the three month period and one year, and the specific facts will always be critical in determining the outcome.

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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. 

Bo Liu worked for 4D Security Solutions, Inc. as an engineer.  He was sent to test the company’s hardware and software at an army base in the United Arab Emirates (UAE). He worked alone on the base and after hours he would upload data to 4D in the United States using a company-issued Blackberry.  One of his job requirements was to respond to inquiries from 4D’s employees in the United States.

Not long after his arrival in the UAE, Liu decided to visit a local museum because he had no “field work” to do on Friday, December 2, 2011.  He was “on call” in the event that an employee in the United States might need assistance.  He took his Blackberry with him while touring the museum.  He testified that he visited the museum because he felt he needed to get to know the people and the culture he was working in.  He did not recall getting any messages from the United States while he was there.  After two hours in the museum, he fell and underwent surgery in the UAE.  He filed a claim petition for workers’ compensation benefits.

The Judge of Compensation dismissed the petition because N.J.S.A. 34:15-36 provides that one who is on a special mission is only covered when performing the duties assigned or directed by the employer.  Liu was merely touring a museum when he fell.  On appeal, Liu raised two arguments for the first time: namely that he was “on call” and therefore working while in the museum, and secondly that he was covered because of the “mutual benefit” doctrine.

The Appellate Division noted that the only cases supporting petitioner regarding the “on-call” argument were pre-1979 decisions.  The Court noted that the 1979 Amendments were designed to limit compensation to accidents occurring “when the employee is engaged in the direct performance of duties assigned or directed by the employer.”  The Court observed that there was no evidence that US employees were trying to reach Liu while he was in the museum.

As for the “mutual benefit” doctrine, the Court commented that Liu failed to raise this issue below but even so, the Court said that there is no post-1979 decision that has applied this doctrine.  The Court also said, “More importantly, Liu’s personal belief that a museum visit would help him understand the UAE’s history and culture so he could work better with those around him falls far short of demonstrating 4D would necessarily derive any tangible benefit from the museum visit.”

For these reasons the Appellate Division affirmed the dismissal of this case.  This case can be found at Liu v. 4D Security Solutions, Inc., A-3591-15T1 (App. Div. May 1, 2017).

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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. 

Walter Aston worked for Tapco International for 20 years as a shipping and receiving clerk, display builder and a maintenance worker.  He suffered a heart attack in May 2010.  The company granted 12 weeks of FMLA leave as well as an additional 14 weeks of short-term disability leave.  The company policy was not to hold positions open for employees who are unable to return to work after their 26 weeks of absence.

Aston asked his doctor, Dr. Karabajakian, to complete a short-term pay extension form on November 4, 2010.  The doctor noted that Aston would have an impending implantable cardioverter defibrillator surgery and could not return to work until January 1, 2011.  However, Dr. Karabajakian checked “ok” next to all the job functions listed on page one of the job description with the exception of an inability to lift more than 30 pounds of weight.  Dr. Karabajakian later testified in his deposition that when he filled out this note, he neither knew nor spoke to Aston about the amount of time Aston engaged in different job activities.

Tapco’s HR Director got the note and read about the impending surgery, which involved implanting a device to prevent sudden death.  The HR Director, Ms. Brisson, told Aston that the company had pretty much decided to terminate his employment.  Brisson told Aston to take long-term disability and noted that the company would not likely return him to work with medical restrictions.

After hearing this, Aston contacted Dr. Karabajakian and advised him that he was going to lose his job if the doctor did not give him a full duty return-to-work note.  Dr. Karabajakian then turned around and wrote a completely different note stating that Aston could return to work immediately with only a 30 pound lifting restriction. Aston then called work and said he would be returning to the company on November 22, 2010.

The HR Director called Aston back and said the company was going to terminate him because the job would be too much for him to handle.  The company had decided that long-term disability was the best choice for Aston. On the following Monday, when Aston intended to return to work, Brisson called Aston and told him that his position had been terminated. They followed up that with a note stating that Aston was being dismissed for failure to return for work full duty.

On May 31, 2012, eighteen months later, the company wrote to Aston offering reinstatement on a full-time basis with a few additional duties.  Aston rejected the offer and sued under the ADA.  The District Court ruled for Tapco, and Aston appealed.

The Sixth Circuit Court of Appeals commented that Aston had been unable to perform his job from May 23, 2010 until January 2011.

Here, Aston’s own doctor advised Tapco of Aston’s impending ICD and later testified that the standing, walking, bending, climbing, and reaching demands of Aston’s job extended beyond Aston’s physical capability and that Aston would not have been able to perform nearly half his duties had he returned to work on January 1, 2011.  Therefore, had Aston returned to work on January 1, 2011 with or without accommodation, he would have been incapable of meaningfully completing any of the physical labor his job required of him.

The Court added that the relevant time frame in determining disability discrimination is at the time of discharge.  The Court reviewed the deposition of plaintiff’s doctor, who indicated that the standing, walking, bending, climbing and reaching demands of Aston’s job were beyond his capacity as of November 2010.  It ruled that since Aston was not able to perform the essential functions at that time, the discharge was not discriminatory.

The Court also commented that Tapco had a reasonable basis to question Dr. Karabajakian’s initial note saying that Aston could return to work on January 1, 2011.  “Just a few weeks before terminating Aston, Dr. Karabajakian informed Tapco of another impending major medical procedure that Aston needed to undergo.  This would doubtlessly require additional time for recuperation.  Aston had already been on an extended 26-week leave, once before, in 2006, and, at the time of his termination, Aston was on his second leave of unknown duration, despite the request for return on January 1, 2011.”  The Court said that Tapco had already provided a substantial leave to plaintiff and therefore additional leave would be an unreasonable accommodation.

The case is instructive on a number of levels.  For one thing, the case illustrates a fairly common scenario in which a treating doctor reverses himself on a fitness assessment for no apparent reason.  In this case, the reason for the reversal became apparent later in testimony, namely a phone call from the employee saying he was about to lose his job. Second, the case shows that employers have a reasonable basis to terminate when an employee simply cannot return to work and perform the essential job functions even after a period of substantial leave.  The case can be found at Aston v. Tapco International Corporation, 631 Fed. Appx. 292 (6^th Cir. 2015).

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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. 

When an employee returns to work following a work injury, in many states that ends the workers’ compensation case, but not in New Jersey.  In our state, that just moves the case to the final stage of permanency benefits for loss of function of the body member.  The availability of loss of function awards following temporary and medical benefits explains why so many workers whose injuries occur in other states try hard to file a claim petition in New Jersey.

New Jersey, like all states, has rules on when someone who is injured in another state can file a petition in the New Jersey Division of Workers’ Compensation.  The rules on jurisdiction are well explained in the recent reported decision in Williams v. Raymours Furniture Co., Inc., A-3450-15T4 (App. Div. April 19, 2017).

The case involved an injury to Keith Williams in the State of New York.  Williams lived in New Jersey but worked in Suffern, New York in a warehouse. He tripped over a hand truck in 2014 in the New York warehouse, fracturing his elbow.  The New York Workers’ Compensation Board directed the employer to provide medical treatment and indemnity benefits.  When these benefits ended, Williams filed a claim petition in New Jersey for partial permanent disability benefits based on loss of function in the arm.

Raymours Furniture Company answered the claim by denying jurisdiction in New Jersey.  Williams moved to strike the defense of lack of jurisdiction, but the Judge of Compensation ruled in favor of Raymours Furniture.  The Judge noted that the accident happened in New York State, and petitioner always worked in New York State.

Williams appealed to the Appellate Division and argued that he was hired in New Jersey and lived in New Jersey.  He pointed out that Raymours Furniture had called him at his home some time ago in Paterson, New Jersey to offer him a job as a warehouse worker.  Williams accepted the offer during the phone call while he was in his home in Paterson.  Williams therefore argued that New Jersey did have jurisdiction to entertain his permanency claim petition.

The Appellate Division agreed with Williams and reversed.  The Court noted that New Jersey recognizes jurisdiction when an injury occurs in New Jersey, when the employment takes place in New Jersey or when the employee is hired in New Jersey.  In this case the Court concluded that Williams was hired in New Jersey under the basic law of contracts.  An offer was made and it was accepted in New Jersey when Williams agreed to take the job.  That phone call established the place of contract in New Jersey.  Further, Williams lived in New Jersey, so these two contacts with the state were sufficient for New Jersey jurisdiction.

There are many claims like this in New Jersey where the claim was accepted and paid in New York or Pennsylvania, only for the claimant to file a formal claim petition in New Jersey after the end of medical and temporary disability benefits.  This is permitted so long as New Jersey has jurisdiction over the case.   The receipt of permanency benefits is not considered a duplicate of temporary disability benefits because they are completely different benefits:  temporary disability based on wage loss, and permanency benefits based on loss of function.

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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 recent case of Benimadho v. Somerville Borough Fire Department, A-2351-15T3 (App. Div. April 10, 2017) is fascinating because it draws a line between horseplay, which is ordinarily compensable, and conduct that goes beyond what the employer approves when an employee is away from the normal place of employment.

The case involved a serious brain injury to a young man, Jamie Benimadho, a volunteer firefighter with the Somerville Fire Department (SFD).  Mr. Benimadho, the petitioner, drove to the Somerset County Emergency Services Training Academy (SCESTA) for a scheduled test, along with other volunteer firefighters.  When he got there, he saw a fellow volunteer, Darin Watkins, putting Watkins’ cousin, Kenneth Wise, in a headlock from which Wise could not get free.  Petitioner knew that Watkins frequently wrestled and “roughhoused” with his peers, including his cousin.  Watkins was actually not punching his cousin or slamming him into objects, but petitioner considered this a “violent altercation,” not horseplay.   Petitioner approached Watkins and his cousin, Wise, and told Watkins to “stop it.”  Petitioner then pushed Watkins off his cousin and then grabbed Watkins around the waist.

At this point Watkins released his cousin and then proceeded to put petitioner in a headlock.  Watkins asked petitioner whether he was done.  Petitioner nodded and said, “I’m good,” and petitioner lightly punched Watkins in the ribs to signify submission.  Watkins released petitioner, but when petitioner stood up, he seemed to pass out and then fell backward.  Watkins tried to grab petitioner’s waist to hold him up, but he failed to stop petitioner’s fall onto asphalt.   Petitioner suffered a skull fracture, subarachnoid hemorrhage, subdural hemorrhage, and a traumatic brain injury.

Petitioner testified at trial that he intervened between the two cousins “because like being a firefighter, like, that’s what you’re supposed to do, protect the citizens.” He also said he was trying to enforce the SCESTA rule against horseplay.  Another volunteer firefighter, Cody Hresan, testified that he did not consider Watkins’ headlock with his cousin to be bullying but did feel it was too aggressive.  Hresan also told Watkins to “calm down.”

Petitioner filed for workers’ compensation and the Judge of Compensation ruled the injury not compensable.  The court noted that the SCESTA Rules and Regulations contain a prohibition against “abusive, profane or obscene language or behavior, [and] horseplay or any disturbance during class.”  The SFD mission statement said that the goal of the organization was to protect the lives and property of the citizens of Somerville.

Petitioner argued that he felt that the mission statement impelled him to stop bullying and felt that he did not need permission from his employer to intervene in a situation like this.  He admitted that no one told him to intervene and that he had broken up fights before joining the SFD.

Another volunteer firefighter, Joseph Stitley, testified that he had not been taught that breaking up fights was part of the job.  The mother of Mr. Wise, who had been first placed in a headlock, testified that petitioner tried to save her son’s life.  Several other witnesses on the scene thought the whole affair was horseplay.

The Judge reasoned that petitioner’s activities were not the type that he was assigned or directed to engage in by the fire company.  The Judge noted that the New Jersey Statute at N.J.S.A. 34:15-36 provides that when one is away from the employer’s place of employment, an employee is only covered when he or she is engaged in the direct performance of duties assigned by the employer.  The Judge concluded that petitioner’s intervention in what he perceived was a bullying incident was not an activity assigned or directed by the employer.  Petitioner testified that he has intervened in the past in non-work situations to prevent bullying.  He himself did not present this as a horseplay case, although others on the scene viewed it as horseplay.

On appeal, the Court studied the rule in Jumpp v. City of Ventnor, 351 N.J. Super. 44 (App. Div. 2002), aff’d, 177 N.J. 470 (2003).  In that case the Court noted that someone who engages in a personal errand or activity (picking up personal mail along his work route) is not engaged in the direct performance of duties assigned by the employer.  The Appellate Division said:

There was nothing in either the SCESTA rules or the SFD mission statement that authorized, let alone directed, petitioner to intervene in a physical altercation, even if he perceived the altercation as a bullying incident.  The testimony provided adequate support for the finding that petitioner was engaged in a ‘personal activity’ rather than ‘in the direct performance of duties assigned or directed by the employer.

The Court affirmed the dismissal of this case.  The case is interesting because it focused on the language in Section 36 for what constitutes work when one is away from the normal work site.  It is unclear whether the Court was saying that the horseplay rule does not apply when one is away from the normal work site.  In New Jersey, horseplay is compensable as to the victim.  N.J.S.A. 34:15-7.1. That section reads:

An accident to an employee causing his injury or death, suffered while engaged in his employment but resulting from horseplay or skylarking on the part of a fellow employee, not instigated or taken part in by the employee who suffers the accident, shall be construed to have arisen out of and in the course of employment of such employee and shall be compensable under the act. . . .

The Appellate Division decision did not address the horseplay statute.   If the Court had viewed Watkins’ activity as horseplay, the conclusion might have been different.  The Judge of Compensation put emphasis on the fact that petitioner had no duty to intervene in the activities that Watkins and Wise were engaged in. She also emphasized that their activity was contrary to the Department Rules. In other words, she focused on the language of Section 36 dealing with activity away from the normal place of employment.  There was really no discussion of whether this case fits the horseplay statute, namely whether petitioner engaged in conduct “not instigated or taken part in by the employee who suffers the accident.”   Even if the case had been viewed as horseplay, petitioner would have had to deal with the above language in that he did take part in the activity by intervening in an altercation between cousins.

This decision raises an interesting question:  would the outcome have been the same if these events had taken place at the Somerville Borough Fire Department instead of an off-site training academy?  The language focused on by the Appellate Division in Section 36 regarding “direct performance of duties assigned or directed by the employer” only comes into play only because the petitioner was away from his normal work site.  Viewed as an “assigned duties” case, the decision is undoubtedly correct because petitioner had no duty to intervene, and company rules prohibited horseplay.  Although the case is unreported, it is important because it would seem to suggest that the horseplay provision does not apply to off-premises activities because when one engages in horseplay, one is never engaged in the direct performance of assigned duties.

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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 New Jersey statute permits claimants who receive an order approving settlement to reopen claims for additional medical, temporary or permanent disability benefits.  In Holowchuk v. O’Sullivan Menu Publishing, A-5235-14T3 (App. Div. April 6, 2017), the petitioner, Robert Holowchuk, injured his low back lifting two, five gallon drums of chemicals in 2007.  He received an award of 35% for herniated discs at L3-S1 with radiculopathy.

In 2013 Holowchuk moved to reopen his award of partial permanent disability.  He testified at trial that he was unemployed for some time after the settlement but got a job in 2013 for seven months delivering small car parts.  He was laid off from that job and then got another job working 30 hours a week using computer files to set up printing plates for press runs. He did very little lifting in that job.  He testified that his sleep and marital relations both suffered and the numbness in his left foot spread to his entire foot and calf.  He also said he regularly experienced a dropped left foot.

Petitioner’s original expert reexamined petitioner and found on the physical exam increased lack of flexion and restriction on straight leg raising.  The doctor noted a flattening of the normal curvature of the petitioner’s spine and chronic spasm.   She noted that the petitioner’s lower lumbar musculature was harder than it was at the start of the examination.  The doctor took note of petitioner’s complaints that he could no longer do lifting, bending or twisting and would likely need ongoing pain management.  There was no mention of any comparison between old MRIs and new studies, leaving the reader to question whether any new studies were done.  As a result of her examination, petitioner’s expert found an increase of 10% from 75% partial permanent disability to 85%.

Respondent’s expert found no objective proof of worsening.  He noted that petitioner had been recommended for potential surgery in 2013 but it did not take place.  The respondent’s doctor conceded that petitioner had 15 to 20 degrees less range of motion on the left in a straight leg raise compared to the last exam in 2010.

The Judge of Compensation awarded an increase to petitioner of 10%, which was the estimated increase from the expert for petitioner.  For someone with maximum rates, that would amount to approximately $43,000.

Respondent appealed and argued that there was no demonstrable objective evidence supporting an increased award.  The Appellate Division noted petitioner’s testimony that his pain was no longer stable and had sharpened and become more frequent.  The Court also noted the complaint about a dropped left foot.  The most interesting part of the decision is the Appellate Court’s acceptance of the argument that range of motion testing by petitioner’s expert satisfied objective medical evidence:

Petitioner’s expert found objective evidence to confirm those complaints, marked flattening of the lumbar curves, muscle spasm across the flanks, gluteal, posterior thigh and iliac crest areas on both sides and appreciable hardness of the muscles of petitioner’s lower lumbar area following manipulation.

 The Appellate Division noted that the Judge of Compensation refused to put this case through on a Section 20 basis.  The Court affirmed the reasoning of the Judge of Compensation and held that the record supported the findings of the Judge of Compensation that the physical exam of petitioner’s expert satisfied the objective medical evidence requirement.

The case challenges some prior unreported cases that seemed to suggest that range of motion testing is variable and not truly objective. Had there been subsequent MRIs that appeared identical to prior MRIs, it would have interesting to see whether the same result would have been reached.

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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. 

Kim Mason was injured on March 22, 2011 falling off her UPS delivery truck and injuring her wrist, requiring surgery.  She reached maximal medical improvement in October 2011. Several months later she requested accommodations for her wrist disability under the ADA.  Her surgeon completed a form which indicated that Mason could not perform all the functions of her current UPS driver position without certain accommodations.  The doctor gave Mason a 25 pound lifting restriction with ability to lift 10 pounds occasionally.

Mason met with Human Resources regarding her accommodation request.  She suggested that she could be accommodated by obtaining a position without the requirement of lifting heavy packages, noting management training and package center supervisor positions.  She also identified other jobs like customer counter clerk, safety, and other less physical positions as suitable for her to perform.  She noted that during her 17 years with UPS she had performed many of these jobs that she was asking to be considered for.

There was no question that Mason could not continue to perform her current job as a delivery truck driver because it involved heavy lifting. HR noted that Mason had the education, skills and experience to perform many of the jobs that she requested transfer to, but unfortunately there were no current openings.  UPS has an ADA committee, and the committee made a final determination that there simply were no jobs available for Mason to perform.  The company kept looking for union jobs during the next six months but none came open.

UPS employees who sought management positions in the company were required to go through the company’s “Management Assessment and Promotion Process” or “MAPP.”  To initiate the process, the employee had to submit a written letter of interest to UPS, and this letter had to be submitted for every year that an employee wished to be considered for a management position.  Letters of interest expired every December 31^st.  Once a letter is submitted, the employee’s supervisor would conduct an initial assessment with scoring in a number of areas.  If an employee passed the first phase, then there were additional steps for the MAPP process.  This MAPP process became pivotal because two positions opened up at the Huntsville, Alabama location that did not require handling packages.  They were not union positions but management positions.  UPS notified Mason regarding these two open positions but Mason had not even started the MAPP process and was unavailable.

Thereafter Mason initiated the first phase of the MAPP process.  Her supervisor gave her a score  between two and three.  A score of 3.5 was required to pass the initial assessment, so Mason was never considered for promotion to a supervisory position in 2012.

From February 2012 to April 2013 several union job openings occurred at the Huntsville facility but all of them required physical functions far in excess of Mason’s restrictions.  Mason alleged that there were people doing some of these jobs who were receiving help in heavy lifting of packages, including the position of customer clerk.  One employee (Ms. Pender) gave testimony that she did get assistance from others on the heavy lifting aspects of the job.

Mason sued under the ADA asserting that UPS failed to accommodate her disability.  UPS moved to dismiss the case by arguing that Mason was not a qualified individual because she could not perform the essential functions of her job or the jobs she desired.  The district court agreed, and Mason appealed to the Eleventh Circuit Court of Appeals.  The Court said that it was Mason’s burden to identify the accommodation she needed and then show that it is reasonable.  The Court rejected Mason’s argument that UPS should have considered her for a management position.  “The ADA does not mandate that employers promote disabled employees in order to accommodate them.” (citation omitted).  Regarding Mason’s argument that other employees would be available to help on the heavy lifting, the Court said:

Mason’s restrictions would require her to leave every package weighing more than 25 pounds and some packages weighing between 10 and 25 pounds for other employees to deal with.  Given that evidence in the record reflects that the Huntsville center is small and leanly staffed, and requires all employees to perform their functions, Pender’s testimony is again insufficient to create a genuine factual dispute regarding the impact requiring another employee to assist Mason with any package weighing more than 25 pounds would have on the package center’s operations.  Thus, this requested accommodation is not reasonable.

In the end, the Court deferred to UPS’s job descriptions on what the lifting requirements were for each job and how the Huntsville facility functioned.  The Court found that Mason failed to prove she was a qualified individual, and therefore UPS had no duty to accommodate her disability.  The case can be found at Mason v. United Parcel Service Co. Inc., 2017 U.S. App. LEXIS 400 (11^th Cir. 2017).  It demonstrates several points: first, how easily a workers’ compensation injury can lead to ADA litigation; second, how important job descriptions are in establishing essential functions of the job; third, if any employee cannot show he or she is qualified to do the job, there is no duty to accommodate.

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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.