NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Rose Fonrose Louis worked at a Burger King restaurant in the Monmouth Mall in Eatontown, N.J. On August 29, 2008, Louis was working in a walk-in freezer when an assistant manager, Hany Salib, followed her into the freezer and proceeded to touch her breast and buttocks through her clothes, kissing her neck, and attempting to insert his tongue into her mouth. While she was in the freezer, Emad Ghaitey, the manager of the restaurant, opened the door, looked at both employees, and then left. When the door had been briefly opened, Salib ceased touching Louis, but later in the same day, Salib again touched her and kissed her in the freezer.
Louis did not report either incident on the day the two incidents occurred. However, the following day, Louis’s husband called to complain about how his wife had been treated. Louis’s husband then came to the restaurant the following day to provide more details of the alleged assault. Burger King had a written policy prohibiting workplace harassment which all employees received. Ghaitey followed the policy and reported the allegations to the district manager, who conducted an investigation. Salib was suspended, then transferred to another store, and eventually terminated when he did not report to work. Louis ceased her employment with Burger King two weeks after the alleged assault.
On September 10, 2008, Louis reported the two incidents to the local police, who arrested Salib and charged him with fourth-degree criminal sexual contact. Salib pled guilty to a down-graded charge of violating an ordinance.
In March 2009, Louis brought a workers’ compensation claim against QQR, (the restaurant owner), alleging workplace injuries and sexual assault. That case was settled for $7,500 on a Section 20 basis. Louis and her husband also brought a civil claim against Salib, Burger King Corporation, QQR, and Ghaitey. The claims against Burger King were dismissed and the claims against Salib were settled and dismissed.
The remaining defendants, QQR and Ghaitey, moved for summary judgment, arguing that the civil suit was barred by the exclusive remedy provision of the workers’ compensation act. The trial judge dismissed the suits, and Louis and her husband appealed. They relied on a 1988 federal case, Cremen v. Harrah’s Marina Hotel Casino, 680F. Supp. 150 (D.N.J. 1988) where the court held that the civil suit survived the workers’ compensation bar. The Appellate Division in this case held that the facts inCremen were distinguishable.
In Cremen, the employee lodged a verbal complaint against a supervisor employee who sexually assaulted her. . . She was assured by a Harrah’s employee in charge of investigating such allegations that the supervisor would be promptly dealt with. . . Harrah’s failed, however, to address the matter and the harassment continued. . . . When Harrah’s moved for summary judgment arguing that the Act barred the employee’s common-law claims, the district court denied summary judgment because Harrah’s was put on notice and failed to take action. . . As already pointed out, there are no facts showing that QQR or Ghaitey had any prior notice of Salib’s intentional actions, and when the complaint was brought to QQR’s attention, prompt action was taken and no further harassment occurred.
The Appellate Division held that this case was simply a matter of negligence. It felt that Ghaitey acted negligently in that he should have asked what was going on when he walked in to the freezer. To get past the workers ‘comp bar, Louis had to prove intentional conduct, but the court said that this sort of inaction cannot be equated with intentional harm. The court also held that QQR engaged in no conduct that could be deemed to be intentional. It acted consistent with its harassment policy once the claim was reported. Therefore, the workers’ compensation act barred the civil suit against both Ghaitey and QQR.
This case illustrates once again how strong New Jersey’s workers’ compensation bar remains. It is exceedingly difficult for a plaintiff to prove intentional harm. The case can be found atRose Fonrose Louis and Fritzner Louise v. Burger King Corporation, et. al., (A-1000-14T2, App. Div. December 4, 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.
Colleen Fitzgerald filed a claim petition alleging that on April 26, 2010 she was walking down an alley as a zone merchandising supervisor for Walmart, when she suddenly felt a “pop” in her lower back. She admitted that she was simply walking at the time the incident occurred. However, prior to this popping incident she said she was doing some lifting at work. She experienced severe pain radiating into her buttocks and down her legs.
Fitzgerald reported the injury to her zone manager but she did not fill out an accident report at that time. She thought the pain would subside. The next day at work the pain was more severe, causing her leg to give out and requiring her to leave work. She saw her family doctor on April 29, 2010 who prescribed for her two medications and an MRI.
Fitzgerald took FMLA leave for the next 12 weeks. On May 13, 2010 the MRI was performed revealing protruding discs at L4-5 and L5-S1 with mild displacement of the right L5 and S1 nerve roots. Fitzgerald also saw a chiropractor in May 2010.
Fitzgerald attempted to return to work following her FMLA leave but still had pain. In June 2011, she sought additional care when her back pain increased after a coughing spell. She then took a second leave of absence while getting epidural injections.
In September 2011, Fitzgerald was involved in a non-work-related slip-and-fall in which she broke her elbow, requiring a third leave of absence. She did not return to work and her employment was terminated. However, her back treatment continued into December 2013.
Fitzgerald filed two claim petitions in April 2012: first, she argued that a traumatic accident occurred on April 26, 2010; second, she argued that her injuries were the result of occupational exposures from December 2008 until April 2010. In December 2013 she filed a motion for medical and temporary disability benefits. Petitioner testified in support of her motion as well as her medical and psychiatric experts. Respondent produced its orthopedic expert and offered the report of its psychiatrist in evidence.
Both experts agreed that petitioner had protruding discs at L4-5 and L5-S1 but they disagreed completely on causation. The Judge of Compensation ruled for Walmart and dismissed both petitions. Petitioner filed an appeal and the Appellate Division affirmed the dismissal of the cases. The Court reviewed prior case law for the requirement that petitioner prove her injury would not have occurred but for her employment.
Applying the test, the judge concluded the petitioner failed to satisfy the first step of the test, in part because ‘[t]he facts here do not establish that the petitioner would not have been exposed to the risk if she had not been at work.’ An appellate court must give ‘due regard to the opportunity of the one who heard the witnesses to judge of their credibility’ and owes deference to the judge’s expertise in workers’ compensation issues.
This case was handled successfully for Walmart by Lora Northen, Esq., partner with Capehart Scatchard, with assistance from Andrea Schlafer, Esq. on the legal briefs. The case underscores the rule that just because an event happens at work does not mean it is compensable. There are many health issues that occur during work but are not necessarily caused by work. Feeling pain in one’s joints or spine while walking is not work related unless work effort or work premises cause or contribute to the medical condition. This case can be found at Fitzgerald v. Walmart, A-1186-14T3 (App. Div. November 20, 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.
Michael Sluga worked for Metamora Telephone Company as an Outside Plant Supervisor. On July 27, 2011 he slipped on a trailer while at work and fell two feet to the ground, tearing his rotator cuff. He tried to work with the injury but eventually in December he asked for a six month leave of absence to obtain surgery to the shoulder and then physical rehabilitation after surgery. His surgery took place on February 15, 2012 in Chicago, Illinois, and he was placed on FMLA leave from February 15, 2012 to May 16, 2012.
Metamora promoted another employee, Dale Matson, to Outside Work Supervisor on May 20, 2012 after Sluga’s FMLA leave expired. Matson had previously been under Sluga’s supervision, but he had been doing Sluga’s job while Sluga was on leave. Metamora also hired Don Adams on August 6, 2012 to work on the outside crew doing line installation, filling Matson’s position.
Sluga filed a workers’ compensation claim for his shoulder and settled it. On July 27, 2012, the treating doctor sent a report to the workers’ compensation carrier stating that he would give an opinion on Sluga’s ability to return to work in four weeks. Ultimately, Sluga’s doctor released him to work on August 30, 2012 with certain restrictions. At that point Metamora terminated Sluga’s employment because the company had no open jobs for him to perform.
Sluga sued under the Americans with Disabilities Act, alleging that he was discriminated against on the basis of disability for failure to make reasonable accommodations. Metamora countered that Sluga never really asked for any accommodation. The Court said, “Even if Plaintiff had preserved his reasonable accommodation claim, it would fail based on the evidence presented. When an employee seeks a reassignment to a vacant position as a reasonable accommodation, as Plaintiff does here, it is the employee’s burden to show that another position for which they are qualified existed.” The Court added that Sluga never proved that there was an available job for him to perform.
Sluga also argued that the real reason that the company terminated him was that it did not want someone with a disability to return to work. The Court disagreed, noting that Sluga never offered evidence that the company did not honestly believe that no positions were available in August 2012. The Court examined depositions and company affidavits given in the case by managers of Metamora and concluded that the company consistently explained that there just was no job available for Sluga when he was cleared to return to work. The Court also affirmed the principle that a company does not have to bump one employee to accommodate another employee.
This case can be found at Sluga v. Metamora Tel. Co., 2015 AD Cases 181739 (C.D. Illinois April 27, 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.
Most assaults by an employee on another employee on work premises are compensable for the victim of the assault, but the facts inJoseph v. Monmouth County, A-4144-13T3 (App. Div. December 14, 2015) were most unusual.
Lesley Joseph was a nursing supervisor at a Monmouth County owned nursing home. On June 9, 2011, Mr. Joseph was taking a break in the break room, had his feet up and his eyes closed, when his female assistant attacked him with a hammer, causing multiple injuries and cuts on his face and head. Joseph managed to wrest the hammer away from his attacker and asked for help. Police and paramedics responded and took him to the hospital. Joseph filed a workers’ compensation claim which the County investigated, finding circumstances behind the attack that cast grave doubt on the compensability of the claim.
Through its investigation, the County learned that Joseph had become involved in a pyramid scheme run by his assistant. This scheme was called a “susu,” which required an investment in which participants put money into a pot and then take turns sharing the amounts collected. An example was provided where 20 employees would contribute $100 each week, then over the course of 20 pay periods, each employee would take turns collecting $2,000 during his or her assigned week. No interest was paid.
Joseph participated in the “susu” on three occasions but never collected any funds. Participants became concerned when the petitioner’s assistant said she had an upcoming wedding. Petitioner tried to talk to his assistant, but she avoided him. On June 9, 2011, he approached his assistant and talked about what rounds needed to be done on her shift but then started telling her that everyone in the “susu” was upset because people in the pool who were supposed to be paid the week prior had not yet been paid. Joseph emphasized that he himself was supposed to be paid the next week. The assistant admitted that she had to use some of the money but assured petitioner that he would get his money. Shortly thereafter the assistant attacked petitioner and eventually pleaded guilty to aggravated assault with a deadly weapon.
The Honorable Lionel Simon III, Supervising Judge of Compensation, Monmouth vicinage, held that the confrontation between the two employees did not arise from work but rather from the fact that Joseph felt he was not going to be paid on time. Judge Simon further found that there was no nexus to work at all. The mere fact that the attack happened at work was not sufficient for coverage because it did not arise from work activities. Petitioner appealed the dismissal of his case.
The Appellate Court said, “Assuming there was no prohibition against sleeping in the break room, petitioner’s claim still could not be sustained because its origins were only related to his involvement in the susu scheme, a personal connection to the assistant that resulted in injuries for reasons wholly unrelated to their employment.” The Court said that the attack arose from personal motivation and was not attributable to a risk of employment. “Had petitioner not been a participant in his assistant’s susu, the attack would not have occurred. Once he became involved and questioned his assistant about the ‘invested’ money, he was attacked at a location that just happened to be their place of employment.”
The petitioner argued that work brought the two employees together and created the conditions that resulted in the confrontation. However, the Judge of Compensation and the Appellate Division both noted that this was a case where the friction between the two employees arose from purely personal reasons unrelated to the work that they performed at the county nursing home.
This decision is a significant one because it illustrates the exception to the general rule that the victim of an assault at work at the hands of a co-employee is generally covered. If the origin of the animus is purely personal, having nothing really to do with work, neither the victim nor the aggressor is covered. This case was successfully handled at both the trial level and the appellate level by Carla Aldarelli, Esq., partner in Capehart Scatchard.
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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.
Samuel Roman formed Treeminator Tree Services, Inc. in 2007. By 2012 he and his girlfriend, Sandra Flores, were both employees along with two others. In 2009 Roman sought workers’ compensation coverage with NJM for Treeminator Tree Service, LLC, a company with no employees and a minimum premium. He obtained the same type of policy in later years with Technology Insurance Company, part of the Amtrust Group.
On May 4, 2012, Roman was cutting down a tree when he fell and suffered very serious injuries. He filed a workers’ compensation claim against Technology Insurance Company, which denied the claim on the ground that the policy indicated that Treeminator was an LLC with no employees. Petitioner then filed a Motion for Medical and Temporary Disability Benefits, and a full trial ensued with testimony from petitioner, his girlfriend, and three witnesses associated with the insurance broker.
The Judge of Compensation, the late Honorable Virginia Dietrich, ruled that petitioner made material misrepresentations in procuring his insurance application and was not entitled to coverage. She found that Mr. Roman provided false information in obtaining his policy in that all of his workers’ compensation policies indicated that he had no employees. The application for the Technology policy described the business as a “one man operation – no employees.”
Further, the Judge of Compensation noted that Roman also misrepresented the nature of the business as one involving landscaping instead of the high risk work of tree removal and tree trimming. She concluded that Roman did not intend to cover himself when he procured his workers’ compensation policy.
Roman appealed and contended that his broker erred in not procuring for him a policy listing his company as a corporation. He argued that he himself should not suffer due to his broker’s error. The Appellate Court noted that the Judge of Compensation rejected this argument because it was clear from the evidence at trial that Roman was trying to pay the absolute lowest amount possible for coverage as a Limited Liability Corporation (LLC) with no employees. The Court said, “When apprised of the increased costs of insuring a company with employees, Roman chose to ‘take coverage as cheaply as he could find it. He wanted to pay the least and hoped for the best.’”
The Appellate Court agreed with the Judge of Compensation that there was sufficient credible evidence in the record to support the finding that petitioner made a material misstatement of fact underN.J.S.A. 34:15-57.4, thereby warranting dismissal. This matter was handled successfully by Nick Dibble, Esq. of Capehart Scatchard with assistance on the brief from the undersigned. It can be found at Roman v. Treeminator Tree Service, A-0094-14T2 (App. Div. December 2, 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.
Robert Miller worked as customer service and bookkeeping associate at Saker Shoprite from 4:00 p.m. to 11:00 p.m. On January 29, 2010, Miller came to work to pick up his paycheck at 10:00 a.m. The store allowed employees to do direct deposit or to pick up their paychecks in person. While he went in to get his paycheck, someone waited in the car outside. One fellow worker described Miller as wearing what appeared to be pajamas.
Miller picked up his paycheck at the courtesy desk and then cashed it. He also bought a lottery ticket for a co-worker who was working a register in the checkout area as a cashier. He walked over to the co-worker, handed her the lottery ticket, turned and headed toward the store exit. As he exited, he slipped on a substance that may have been sugar or salt, falling to the floor and injuring his knee. He was diagnosed with a medial meniscus tear.
Miller filed both a workers’ compensation claim and a parallel personal injury action in the Law Division. The Judge of Compensation heard testimony and ruled that the accident was compensable. The judge relied on the fact that the store allowed its employees to cash their paychecks at the store. In the judge’s mind, this indicated that the store intended to benefit by “impulse buying” of workers who came to cash their checks in person. The judge awarded 17.5% disability of the leg or $11,686.50.
Saker Shoprite appealed and contended that there was no legal support for a finding of compensability. The Appellate Division reversed the Judge of Compensation, noting that petitioner was not performing any work duties at the time of his injury. He was not dressed for work and was only there to do a personal task, namely pick up his paycheck. In addition, the court noted that petitioner performed one other personal task in buying a lottery ticket for a co-worker.
In finding that the fall was not compensable, the court had to distinguish this case fromChen v. Federated Dep’t Stores, Inc., 199N.J. Super. 336 (App. Div. 1985). In that case an injury to a Federated employee was found compensable during lunch hour when the employee tripped on a clothes hanger while shopping in the store. The Appellate Division in that case found that the lunch-break shopping was beneficial to the employer and encouraged by the employer.
In this case the court said that Miller’s injury did not occur during a lunch break but many hours before his work shift would begin. The court also found that Miller never offered proof that Shoprite benefited from having employees pick up checks in person. The benefits manager of the store testified that employees were generally discouraged from remaining in the store if they were not working or shopping. The court said, “[t]here is no testimony that the store actively encouraged such conduct by check-cashing workers. The practice was merely a gratuitous convenience provided by the employer.”
In reversing the Judge of Compensation, the Appellate Division allowed Miller to reactivate his civil suit against the store. This case may be found atMiller v. Saker Shoprite, A-3746-13T2 (App. Div. November 13, 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.
Employers often find New Jersey to be a very frustrating state for workers’ compensation because it is very difficult to close a file for good, unless the parties have grounds for a Section 20 disposition and the proposed Section 20 meets with the approval of the Judge of Compensation. Now those employers will have added basis to complain in light of one of the most astonishing workers’ compensation decisions in decades. InCatrambone v. Bally’s Park Place, A-3589-13T4 (App. Div. November 12, 2015), the New Jersey Appellate Division this month held that a man who received an award for total and permanent disability for his neck with Second Injury Fund contribution can reopen a prior award for his low back.
The case appears to be the first of its kind in New Jersey and is causing waves in the workers’ compensation community because almost every practitioner had been of the impression that total disability means exactly what it says: the most one can get in workers’ compensation court.
It is important to understand the factual context. Mr. Catrambone had two accidents: the first was on March 18, 2006 involving the low back. That led to a settlement on May 15, 2008 for 27.5% of partial total with a small credit for a gross amount of $27,570. The second accident happened on June 14, 2008 and involved mainly the left shoulder. On March 24, 2009, petitioner filed a reopener of the award on the low back and filed a claim petition for the second accident on June 14, 2008 for the left shoulder. Mr. Catrambone alleged that he was totally disabled from a combination of the second accident and the preexisting back problems from the first accident and applied for benefits from the Second Injury Fund.
The parties proposed a simultaneous resolution of both claims on November 29, 2010 with participation of the Second Injury Fund:
1) The low back reopener was settled for 30% credit 27.5%. That award became the basis for Second Injury Fund contribution because the Fund will only contribute if there is proof of previous disabling conditions, whether work-related or non-work-related.
2) The left shoulder claim was settled for 100% permanent total disability with the employer paying 150 weeks and the Second Injury Fund paying 300 weeks and then paying for the rest of petitioner’s life.
All was well until November 14, 2011 when Mr. Catrambone moved to modify the prior low back award. The modification, often called a reopener, was an attempt to increase the prior award of 30% to a higher percentage because Mr. Catrambone argued that his back was worse than it was when he settled on November 29, 2010. Bally’s protested that Mr. Catrambone had already been adjudged totally and permanently disabled and could not therefore get any further increase in his low back award. Bally’s also pointed out that the basis for the contribution of the Second Injury Fund was the prior 30% award, and that award had already been considered as part of the simultaenous settlement with the Second Injury Fund.
The Judge of Compensation disagreed with Bally’s and held that when there are two accidents, the first one being a partial award, the employee could settle for total disability on the second accident and still seek an increase later on the previous award for partial disability from the first accident. The Judge did state that if there is only one accident resulting in total and permanent disability, that award cannot be reopened. The Judge of Compensation entered an order for 35% permanent partial disability with a credit for the prior 30% award, granting petitioner another $27,048. Bally’s appealed this decision.
The Appellate Division noted in its recent decision that when the case actually settled on November 29, 2010, the Judge of Compensation did say to the claimant that he had a right to reopen the partial award and neither attorney said anything at the time. Further, the Appellate Division noted that no prior case directly on point existed precluding Mr. Catrambone from reopening the earlier award on his low back, even though he received total and permanent disability benefits for his left shoulder injury. The Appellate Division held that if a claim for increased benefits is based on a different injury than the one that totally disables the claimant, then the earlier injury award can be reopened. In this case, there was a period of about six months when Mr. Catrambone would be receiving both his additional partial award and total and permanent disability benefits from the Second Injury Fund. The Court ordered Bally’s to repay the Second Injury Fund during that period of double payment. In the end, Bally’s had to pay $27,048, but Mr. Catrambone got $16,054 and the Second Injury Fund got repaid by Bally’s the sum of $10,994.
This case has serious implications for employers who resolve total disability claims with the Second Injury Fund using a prior partial award as a basis for Fund contribution, as well as employers who resolve total disability claims on their own without the Fund when the claimant has prior partial total awards. There appears to be no end to the claimant’s right to reopen the prior award in these situations. While common sense would suggest that total and permanent disability is the end of the line, this case is now the leading one in New Jersey. Based on this decision, Mr. Catrambone can continue to reopen his low back claim so long as he does so within two years from the last payment of compensation to him. The sense of finality that employers had with regard to total and permanent disability claims appears now to be illusory.
It is the understanding of this practitioner that Bally’s has applied for certification from the Supreme Court of New Jersey.
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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 signature workers’ compensation event in the United States takes place each year at the National Workers’ Compensation and Disability Conference and Exposition in Las Vegas, Nevada. The highlight of the conference is the presentation of the “Teddy” award to a select few companies, chosen from hundreds of applicants, for outstanding achievement in workers’ compensation. The “Teddy” award honors the memory of President Theodore Roosevelt who lobbied for years on behalf of workers’ compensation laws to protect injured workers.
This year New Jersey based Barnabas Health System along with three other companies around the nation won the coveted “Teddy” award for its innovative Corporate Care program, spearheaded by Caryl Russo, Vice President of Corporate Care. Several Capehart Scatchard attorneys were present at the ceremony. Russo acknowledged the efforts of her business partners in winning this award, including PMA Management Corporation, third party administrator, William H. Connolly, the hospital’s insurance broker, as well as Capehart Scatchard, among others.
Russo and three other representatives of award winning companies, including American Airlines, participated in a 90 minute panel discussion focusing on the elements of success behind each company’s award winning workers’ compensation program. Russo began by posing this challenge, “Creating consistency in an occupational health program is like tacking jello to a wall.” There are countless challenges to be faced. She said that for Barnabas Health Care the key was establishing clear and achievable goals. In the hospital’s case the main goals were to provide the best possible health care while reducing lost time frequency.
The hospital created a system-wide “corporate care” program which was rolled out at each member hospital one hospital location at a time. A highly qualified occupational physician was hired to oversee treatment of workers’ compensation cases at each hospital. All the physicians were trained in understanding the requirements on the New Jersey Workers’ Compensation system. The program also focused on the need for creative modified duty positions at every hospital location. Since the rollout of the program, Barnabas has seen a 72 percent drop in lost time frequency.
Another key aspect of the program was the creation of a claim triage team, including the third party administrator, broker, department heads and other professionals. The triage team convened each week to focus on complex and high cost claims, looking for innovative ways to close files and resolve claims in an efficient manner. Another focus of the program was to put in place systems which helped gather detailed past medical history early in the life of a new claim which could bear on causation and credit issues. Such information became critical for occupational physicians and specialists involved in providing medical care.
Russo explained that all of these changes have resulted in millions of dollars in cost savings and reductions of reserves and letters of credit for the hospital, at a time when many New Jersey employers are experiencing skyrocketing workers’ compensation costs.
Those who are interested in learning more about Barnabas Hospital’s Corporate Care program can hear Russo and her award-winning program team speak about the crucial elements of their cost saving program at the Millennium Seminar on December 3, 2015 at the Hilton Hotel in Parsippany, New Jersey. Information on and registration for the seminar is available at www.millenniumseminars.com or by contactingcwright@capehart.com.
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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 hallmarks of the New Jersey workers’ compensation system is that awards of partial permanent disability can be reopened for more medical, temporary or permanent disability benefits. In this case, Rebecca Weston, a detective investigator for the Union County Prosecutor’s Office, received an award of 55% of partial total, 31% of which was attributed to her cigarette smoking. She reopened the case in 2010 claiming that her chronic obstructive pulmonary condition (COPD) had worsened.
In 2011 Mrs. Weston passed away and her husband continued the litigation. The Honorable Lenore Kramer Mohr, Administrative Supervising Judge of Compensation, found that the increase in petitioner’s pulmonary disability was due exclusively to continued cigarette smoking, not to work exposures. The Judge found that petitioner “never gave up smoking for any significant period of time and continued to smoke regularly until the time of her death.” Mr. Weston appealed.
The Appellate Division said that the controlling test is “whether the work exposure substantially contributed to the development or aggravation of petitioner’s medical condition.” One of the key reasons for the affirmance in this case was that Mrs. Weston’s last exposure to environmental pollutants at work ended in the year 2000. The Court concluded that this fact made it extremely difficult for the claimant to show material worsening from work exposures, given that she continued to smoke cigarettes.
There was apparently a dispute in testimony about whether Mrs. Weston stopped smoking in 2006 after she developed COPD but the Judge of Compensation did not believe Mrs. Weston’s testimony.
The Judge also credited the testimony of the employer’s medical expert that Rebecca’s COPD became worse due to her continued smoking. The judge did not credit the testimony of petitioner’s medical expert, because he based his opinion on the factual assumption that Rebecca stopped smoking in 2006, and he overlooked what the judge found was clear evidence in Rebecca’s medical records that she had continued to smoke. The judge found petitioner’s expert’s ‘conclusions based on his faulty assumptions were therefore flawed and unreliable.
This case can be found at Weston v. Union County Prosecutor’s Office, A-3578-13T4 (App. Div. October 23, 2015).
The reasoning here is compelling because the only harmful respiratory exposures after retirement were non-work-related cigarette exposures. But the rationale of this case should not be limited to respiratory claims. One can apply the same reasoning to orthopedic claims where an employee with an award of partial permanent disability for the back, for example, retires and later reopens the case. If the employer can show that the worsening of the spine is due to physical exertion in a new job, not the original employment, the same result should follow. Readers should also consider that the employer won this case because of diligent searching of medical records. While the search for past and current medical records may seem tedious and expensive, many cases are won by detailed attention to entries in medical records such as the comments in these records about continued cigarette smoking.
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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 term “idiopathic defense” is widely misunderstood. Practitioners need to appreciate when the defense applies and who has the burden of proving an idiopathic defense. In New Jersey, and in most states, the burden is on the employer to prove an idiopathic defense. The word “idiopathic” comes from the Greek: “idios” meaning one’s own, and “pathos” meaning suffering or illness. It is defined in medical dictionaries as a disease or condition that arises spontaneously or for which the cause is unknown. In law it means more precisely a personal condition which in and of itself explains the injury or illness of the claimant.
At the outset, it is important to distinguish claims where there is no work connection at all: these are not idiopathic claims and petitioner has the burden of proof. The case ofMeuse v. Egg Harbor Township Police Department, No. A-4553-90G5 (App. Div. May 6, 1992) involved a police officer who was walking down steps at the station when he felt pain in his knee. Apparently, a piece of bone broke off in the knee but the officer did not fall or strike anything. The respondent never proved that petitioner had prior treatment in the knee because there was no need to. It was petitioner who had the burden of proving that his knee problem arose from work, but he could not do so. There was really no connection at all with work other than the fact that this happened at work. The Appellate Division stated that this could have happened at any time and at any place and was not compensable.
The burden of proof always rests on the claimant to show that his or her conditionoccurred during work and arose from work. The first concept is one of time; the second concept is one of causation. If there is no work connection, then the case fails on that test. For example, if an employee were just sitting at a desk and began to feel back pain, this would be denied as having nothing to do with work. The respondent would win this case not because the injury is idiopathic but because it does not arise from work.
Now let’s look at an example of an idiopathic claim. InMcNeil v. Township of South Brunswick Police, No. A-0777-11T1 (App. Div. May 9, 2012), Officer McNeil was responding to a call and felt pain in his back while hurriedly exiting his vehicle. He was not sure if he bumped the steering wheel on exiting the vehicle. Later that day he went to the hospital for treatment and reported the incident. The workers’ compensation doctor thought he had at best a mild strain. McNeil eventually brought a motion to compel surgery on his back for an extruded disc.
Respondent arranged an IME which revealed that the officer had a long history of low back problems including prior herniated discs and prior surgery, and in fact the very herniated disc at issue had been known for quite some time. The Judge of Compensation found that the act of exiting the vehicle did not cause any of the pathology in petitioner’s spine, and the physical act of exiting the vehicle was not consistent with the MRI results. The Appellate Division affirmed and found that that exiting the vehicle was not the causal origin of petitioner’s back condition. It said that petitioner must show “whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere.”
In an idiopathic claim, the burden of proof shifts to the employer. When an employee presents enough evidence to show that some event happened at work causing an injury, then the employer has the opportunity to rebut the claim and argue that the real cause is a long-standing or prior medical condition. This burden shift is discussed inVerge v. County of Morris, 272N.J. Super. 118 (App. Div. 1994). The facts in Verge involved an employee who tripped on a rug but did not fall down. The petitioner argued that her knee injury was occasioned by this twisting motion, and that the trip on the rug was the work connection.
The Judge of Compensation dismissed the case saying that this could have happened anywhere, but the Appellate Division reversed on the grounds that the employer should have the obligation to prove that the knee condition was preexisting and that the prior knee condition caused the knee pain. The Appellate Division criticized the trial judge for failing to put the employer to its proofs on the idiopathic defense. “We hold that if petitioner’s ‘slip’ is to be characterized as an ‘idiopathic event,’ it must be found to be one which was caused by ‘a purely personal condition having no work connection whatever.’” The appellate court said that petitioner had discussed prior problems and surgeries with her left knee but had stated she had no problems with her left knee since 1985. The court clarified, “If petitioner sustained an idiopathic injury because there was no slip to cause her knee to twist in the first instance, then she cannot recover, as there was no subsequent fall or impact capable of causing a secondary injury.”
In considering Verge, what the court was saying was that the employer had to prove that the petitioner did not really slip, but rather that her knee condition caused the event due to its preexisting condition. For instance, if the employer had been able to prove that petitioner’s knee had been buckling for weeks due to a prior condition and it just buckled once more, completely unrelated to the impact of the rug, then the injury would have been idiopathic. Similar toVerge isShaudys v. IMO Industries, 285N.J. Super. 407 (App. Div. 1995). There an employee arrived at work in the company parking lot, exited his car and then, as he turned to walk toward his building, took a step with his left leg while slamming his car door shut. In that moment he felt knee pain and heard a pop. The court ruled for the employee: “…IMO would have had to prove by a preponderance of the evidence that petitioner’s injury was caused by a pre-existing condition and that petitioner’s twisting step towards his workplace did not contribute causing his injury.”
The lesson is this to all workers’ compensation practitioners. When you have a case where there is really no connection at all to the employment, you do not have an idiopathic defense case. The burden is on the claimant, who will lose if she cannot show that the injury arose from work. For example, when Mrs. Coleman got her permanent wave solution and came to work the next day and lit a cigarette, causing her hair to ignite in flames, that was not an idiopathic defense case. Petitioner lost because the act of lighting a cigarette had no connection to work. She could not show that the injuryarose from work.Coleman v. Cycle Transformer Corp., 105N.J. 285 (1995). The idiopathic defense only arises after the employee has articulated some work event, even a minor one, which then shifts the burden to the employer to prove that the medical condition was preexisting and in fact caused the minor incident.
In essence, there are two competing theories in workers’ compensation when it comes to causation. An employer takes the employee as he finds him is a dominant theme in workers’ compensation. That means that the employer cannot prevail just because an employee is shown to have prior knee problems or prior low back problems. The reason for that rule is that virtually every employee has prior conditions that he or she brings to the workplace. So if the work effort “aggravates” the prior condition (i.e., objectively worsens it), then the employer is liable to pay workers’ compensation benefits. On the other hand, if the employer can show that the work effort did not really cause the injury but that the preexisting condition was already there and was the cause of the pain, then the employer is not liable.
The idiopathic defense is, in a very real sense, the antidote to the maxim that the employer takes the employee as he finds him. To win such a defense, the employer must obtain prior family doctor records, prior surgical records, prior car accident history, and the like, because a workers’ compensation judge will not rule in favor of an employer with just proof that a person had prior arthritis. This information must then be transmitted to a medical expert for an opinion on whether the cause of the symptomatology was solely due to the prior medical condition, not the alleged work event. Having a prior medical condition like osteoarthritis is not enough to win an idiopathic defense. There must be proof that the prior condition was treated and significant enough to be an independent cause of the petitioner’s injury. Informal discovery and use of ISO and other valuable resources can turn the tide on a workers’ compensation case. This is particularly important in a state like New Jersey where there is almost no formal discovery. Only with aggressive informal discovery can employers prevail in workers’ compensation in New Jersey.
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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.