State News : New Jersey

Employers cannot always make accommodations to persons with disabilities, and the obligation only arises if the employee can show that he or she is qualified to perform the essential functions of the job with or without accommodation. 

            In the case of Atkins v. Eric Holder, Attorney General, 2013 U.S. App. LEXIS 12340 (4^th Cir. 2013), the plaintiff was a Correctional Counselor for the Federal Bureau of Prisons.  He suffered from a disability due to polyarthropathy of the right  knee and degenerative disc disease.  As a result of his medical conditions, he had significant restrictions limiting the amount of time he could walk or stand.  In fact, he utilized two metal canes and stated that sometimes he was afraid for his safety in working.  His doctors indicated that his restrictions were permanent in nature.

            The Bureau of Prisons terminated Atkins’s employment because it concluded that there was no way for him to safely perform his job.  Atkins sued and argued that he was discriminated against on the basis of his disability.  The federal district court and the Fourth Circuit Court of Appeals rejected his law suit.  It laid out the requirements for Atkins to prove his case:  “(1) that he has a disability; (2) that he is otherwise qualified for the employment or benefit in question; and (3) that he was excluded from the employment or benefit due to discrimination solely on the basis of the disability.”

            The Court ruled in favor of the Federal Bureau of Prisons on the ground that Atkins could not show he was otherwise qualified:

There is no dispute that Atkins was disabled at the time of his termination.  However, we conclude that the district court did not err when it held that Atkins was not otherwise qualified for his position.  Only persons who are ‘qualified’ for the position in question may state a claim for disability discrimination.

The Court went on to explain that the plaintiff has to show that he can perform the essential functions of the employment position that he holds or desires.  42U.S.C. § 12111(8) (2006). See also 29 C.F.R. § 1630.(m) (2012).  It further held:

At the time of his termination, Atkins was under several medical restrictions that significantly curtailed the time he was allowed to walk or stand.  Prior to being barred from the institution, Atkins was assisted by two metal canes with forearm braces and stated that he was afraid for his safety.  Because the correctional counselor position was a law enforcement position that required Atkins to physically restrain and control inmates, and no accommodation could be made to alleviate his restrictions, we conclude that Atkins did not make a prima facie claim for disability discrimination.

Of what significance is it when a claimant  who has been treating with a cardiologist for decades files a pulmonary claim but never produces the cardiologist to testify? That was the key issue inDonato v. Jersey City Municipal Utilities Authority, A-5984-11T4 (App. Div. August 21, 2013).

            John Donato worked for the JCMUA from 1961 to 1974 and again from 1986 to 1999.  He worked both as a clerk and a vehicle maintenance supervisor supervising the maintenance of cars, trucks, dump trucks, and vacuum trucks.  He was exposed to soot and whatever else workers brought back from the sewer plant as well as diesel fumes and dust.  In addition, the property where petitioner worked had apparently been contaminated during the ownership of a prior owner with chromium and was now being monitored by the Department of Environmental Protection.

            In 2004, petitioner was diagnosed with pulmonary disease.  He produced an expert, Dr. Malcolm Hermele, who said petitioner had a 75% partial permanent disability for probable bronchitis, restrictive pulmonary disease, small airways disease and COPD.  He said overall petitioner was totally disabled.  He could not distinguish whether petitioner’s breathing problems were due to pulmonary or cardiac causes.

            Petitioner had been treating with a cardiologist for 23 years.  He himself testified that he thought his breathing difficulties were related to his heart condition.  He admitted that he had never treated with a pulmonary doctor even though he noticed that his breathing problems were worsening since 1988.

            Dr. William Kritzberg testified for respondent.  He said that the pulmonary function testing he performed on petitioner did not reveal a mild obstruction in pulmonary capacity.  He felt that petitioner’s pulmonary symptoms were due to heart surgery, drugs used for his heart, and his body weight.  He also said that any chromium exposure would not affect pulmonary performance.

            The Judge of Compensation noted that respondent’s expert was board certified in internal medicine but petitioner’s expert held no board certifications.  She also said that she drew an adverse inference from the failure of petitioner to produce the certified copy of the records of the treating cardiologist, have Dr. Hermele review them, or produce the cardiologist to testify. 

Said records would have reflected any complaints petitioner had concerning his breathing.  It is quite simply implausible that petitioner has the conditions Dr. Hermele diagnosed and that petitioner’s treating cardiologist never referred petitioner to a pulmonologist for treatment (petitioner repeatedly testified that he never received any pulmonary treatment).  Certainly, petitioner’s treating cardiologist of 23 years was in the best position to opine as to whether Donato’s symptoms were due to his severe heart condition or due to a pulmonary condition.  That petitioner’s cardiologist never referred petitioner for pulmonary treatment or prescribed pulmonary medicine leads the court to conclude that petitioner’s complaints are not ‘due in a material degree’ to his occupational exposure at the JCMUA.  He was sent to Dr. Hermele by his attorney for a permanency evaluation, not for treatment.

The Appellate Division agreed.  It said,

Given petitioner’s more than two-decade history of heart disease, those records and the opinions of the treating cardiologist in relation to petitioner’s claim that his pulmonary condition was causally related to the workplace, rather than his heart disease, were highly relevant and probative.  It was petitioner who bore the burden of presenting the requisite proofs to establish his claim. . . . Thus, the fact that petitioner’s treating cardiologist, as a witness, or his cardiologist’s treatment records may have been equally available to both parties did not preclude the judge from ‘making a negative inference from the fact that petitioner never produced a certified copy of the records from his treating cardiologist or had Dr. Hermele review said records as part of his evaluation.’

On a separate, but equally important issue, the Appellate Division disagreed with the petitioner’s argument that respondent violatedN.J.S.A. 34:15-64 by compensating Dr. Kritzberg far in excess of the statutory maximum of $400 for his evaluation and $400 for his trial testimony.

We construe the language of the statute as limiting the fees that may be charged by an evaluating or treating physician in order to maximize the recovery on behalf of an injured worker.  Therefore, the limitation on chargeable fees is intended to protect petitioners.  Moreover, even if we were to construe the statute as limiting fees chargeable by medical experts as applying to respondents’ experts, as well as petitioners’ experts, any violation should not result in the exclusion of the report on that basis alone.  Petitioner presented absolutely no evidence before the compensation judge to support his contention that if there are no limitations placed upon fees charged by respondents’ experts, respondents will be able ‘to afford to bring a more qualified expert to court to offer opinions.’

This case is one that practitioners should turn to when trying occupational disease claims.  The rules for discovery in the Division of Workers’ Compensation are somewhat lacking, and this case points out the importance of getting prior treating records, even if there is no particular rule that requires prior records to be produced. The outcome of this case turned on a complete failure of discovery in obtaining prior cardiology records and forwarding them to the experts.

Mary Patterson worked for The Atlantic Club as a personal trainer, training clients from 6:00-7:00 a.m., from 8:00-11:00 a.m., and from 12:00-3:00 p.m.  She was injured at 11:15 a.m. when she tripped and fell, breaking her wrist on the premises.  The Atlantic Club denied the claim asserting that she was not in the course of her employment at that specific point in time.

            There were various facts in dispute, but the parties agreed that Patterson’s 11:00 a.m. client did not show up for her training session.  Further, the parties agreed that Patterson was not wearing her uniform at the time of her injury, namely a black trainer shirt.  She said she had taken it off due to the heat.  Patterson claimed that she was returning exercise bands which she planned to use for her 11:00 a.m. client when she tripped and fell. Her employer argued that she was working out when she was injured.

            There was conflicting evidence on whether petitioner punched out at 11:00 a.m. A time card entered into evidence showed that Patterson punched out at 11:00 a.m.  However, petitioner’s former manager testified that he altered Patterson’s time card, at the employer’s request, to indicate that she had punched out and was not working at the time of her injury.  The Judge of Compensation found this evidence to be unreliable for a number of reasons.  First, the former manager had been fired some time after this event for submitting time cards for compensation for personal training sessions with a person who was deceased. Further, the time card was shown not to have been changed for about two weeks.

            The general manager of the health club, Kathy Guibord, testified that Patterson may not have punched out at the time of the accident.  However, petitioner told Guibord that she was working out on her own and was not training anyone when she was injured. Guibord noticed that petitioner was in her workout clothes at the time of her injury. 

            The Judge of Compensation viewed the issue of punching out on the time card as insignificant.  He instead focused on the detail that petitioner was out of her uniform.  “[S]he changed out of her uniform and into her personal clothes because she was on her personal time and no longer working.” The Judge of Compensation dismissed the case, holding that petitioner failed to prove her injury occurred during the course of work.

            The Appellate Division affirmed the dismissal of this case:

Patterson has simply not met her burden. . . . She was not wearing the required uniform while she alleged she was waiting for her client.  Guibord testified Patterson told her immediately after the incident that she had been working out on her own when she fell and broke her wrist.  Given the judge’s credibility findings, which we review deferentially, his ultimate conclusion does not appear to be arbitrary, capricious, or unreasonable.

Petitioner made an interesting argument on appeal.  She maintained that there was a mutual benefit to her employer in her working out even if it was for herself.  She contended that employees were affirmatively encouraged to work out at the club in order to increase the employer’s business.  Unfortunately for petitioner, this issue had not been raised in the trial in the Division of Workers’ Compensation.  Seldom will an appeals court address an issue not raised in the original trial. Furthermore, the witnesses Patterson relied on to establish this point were found by the Judge of Compensation to be lacking in credibility. 

This case is useful for practitioners in that it shows that not all injuries at work are compensable.  The holding here was that the activity which led to petitioner’s injury was personal and not part of her job duties.  The case can be found atPatterson v. The Atlantic Club, A-0657-12T1 (App. Div. July 11, 2013).

Winning on summary judgment on fact sensitive ADA cases can be quite difficult as seen inCroy v. Blue Ridge Bread, Inc. d/b/a Panera Bread, 28 ADA Cases 414, (W.D. Va. No. 3:12-cv-00034, July 15, 2013). 

            Mark Croy worked for Blue Ridge Bread (hereinafter BRB) as a café worker. In 2008 he received a promotion in the marketing department.  He received a formal write-up on March 14, 2009 for failing to properly prepare for an in-store event and a second write-up on May 21, 2009 for failing to update a store’s Facebook page in a timely manner.  He received a third write-up on December 28, 2009 for using an inappropriate tone in a phone call with his supervisors.  He also repeatedly failed to submit Product Request Forms which led to shortages in product. 

            Notwithstanding these deficiencies, Croy had a performance review in 2009 that resulted in a “meets expectation” assessment.  He also claimed that he was told in 2010 that his performance was excellent and he would be getting a large bonus.

            In February 2011, Croy began to experience flu-like symptoms and needed time off to see a doctor.  He worked reduced hours for several days. He was given a preliminary diagnosis of HIV on March 10, 2011.  He sent a Facebook message that same day to one of his supervisors stating that he went to an infectious disease specialist and there were strong indications that he had a virus like HIV.  He said that over the next few weeks he had numerous conversations with two supervisors advising them of his HIV diagnosis. 

            On March 14, 2011, Croy returned to his regular schedule. He said his supervisor asked him to provide a doctor’s note stating that he was physically able to return to work.  However, on March 24, 2011, Croy applied for a disability insurance policy through BRB.  On March 25, 2011 Croy presented a note from his doctor stating that he was able to return to work full-time without any restrictions.  The note said nothing about his medical condition. 

            BRB denied that it was aware of the HIV diagnosis.  At most the company said it had been made aware of the possibility of such a diagnosis. 

            On March 29, April 4, and April 8, Croy once again failed to submit Product Request Forms.  Croy admitted his mistake:  “No questions . . . I screwed it up. I am just at a lost at [sic] my mind the past few weeks.  Too much going on I guess and too much distraction . . . I am sorry to let you and the department down like this, but I view it as a temporarily distracted and worried time in my life that will not be repeated.”

            Pursuant to the company’s three strike policy, Croy’s employment was terminated.  The company claimed that after the termination in mid-April 2011, Croy then for the first time advised that he was HIV positive. Crow sued under the ADA claiming the BRB terminated his employment because of his HIV positive status.

            The company made a motion for summary judgment and argued that Croy had repeatedly been written up for violations, particularly in 2009, and repeatedly failed to submit Product Request Forms.  According to the company, this was the sole reason for his termination.  The Court did not accept this position. “While Croy admits to some performance errors during his nearly five-year tenure with BRB, he was never told he was in danger of losing his job until the March 28, 2011 write-up.  His most recent performance review indicated that he was meeting expectations, and he had recently been told that he was doing an excellent job and would be receiving a substantial bonus in the coming year.” 

            In a key point of the decision, the Court noted that the company had never formally disciplined Croy until close in time to his diagnosis. “By the defendant’s own admission, Croy had made similar mistakes numerous times in the past and had never been formally disciplined.  Additionally, Croy reports that a number of his co-workers, including his supervisors Jackson and Perpetua, also failed to properly submit PRFs and were not disciplined for their mistakes. The court believes that Croy has at least established a genuine question of fact as to whether he was meeting BRB’s expectations.”

            The Court observed that Croy had not been perfectly clear regarding his diagnosis.  In fact, he had denied  in one place on his disability application having had any diagnosis of HIV in the past seven years.  Nonetheless, the Court said that there was a significant dispute whether Croy had told his two supervisors about his diagnosis before he was fired. “Although the defendant can dispute this version of events at trial, it cannot do so at summary judgment where the plaintiff’s testimony must be credited.  Moreover, it is undisputed that, at the very least, Croy told his supervisors of a preliminary diagnosis of HIV, as documented in the March 10, 2011 Facebook message he sent to Jackson.”

            It is important to understand this decision merely allowed the case to proceed to trial, meaning that a jury could ultimately conclude either that the company terminated Croy for purely performance reasons or that the company improperly terminated him on account of his HIV status.  In analyzing what went wrong for BRB, the case shows why a

company not only needs to document deficiencies on the job but also take progressive discipline if the problem recurs.  The failure of the company to put Croy on notice that his job was in danger when he made repeated mistakes in prior years came back to hurt the company’s chances in its motion for summary judgment.

Caitlin Wilson was injured on September 8, 2011 when she dropped a heavy frame on her foot while in the employment of respondent Studio I, Inc. She received $420 per week from September 14, 2011 to October 24, 2011 in temporary disability benefits.  Her doctor advised that she could work light duty at the end of this period, but she did not return to work at this time.  She did return part-time from November 15 - 26, 2011.  She claims the respondent then told her not to return to work until she could work full-time.  Petitioner was paid $339.43 in temporary disability benefits for the period she worked part-time. 

            Respondent claimed that petitioner was authorized to return to work with restrictions on October 14, 2011.  It tried to accommodate the restrictions which actually increased over the next two months, but petitioner either did not arrive at work, arrived late or did not perform her job even with accommodations.  Respondent further claimed that petitioner stopped coming to work entirely without producing any medical note.  She resigned from the company on February 9, 2012 because she was moving. It was undisputed that petitioner returned to work on February 10, 2012.

            On January 13, 2012 petitioner filed a motion for medical and temporary disability benefits.  She argued that her wage was miscalculated and that she was entitled to temporary disability benefits from October 25, 2011 to November 14, 2011.  She maintained that her temporary disability benefits should have continued until February 3, 2012.   She also argued that when she filed the motion in January, 2012, she was not working at that time and was, in her view, entitled to temporary disability benefits.  Therefore, in her view, it did not matter that she later returned to work on February 10, 2012. She argued that she was entitled to a decision on her motion at that time.

            The Judge of Compensation, Honorable Philip A. Tornetta, denied the motion because the claim concerned past periods of temporary disability and was contested by respondent.  The Judge relied onN.J.A.C. 12:235-3.2(a):

Motions for temporary disability and/or medical benefits shall evidence that petitioner is currently temporarily totally disabled and/or in need of current medical treatment.  Where only past periods of temporary total disability and/or medical expenses are claimed by petitioner, such issues should be presented at pretrial for resolution or trial and not by motion under this section. 

The Appellate Division reviewed the appeal and affirmed Judge Tornetta’s decision.  It said, “in this matter an incorrect determination of past temporary benefits can be remedied by a retroactive award of benefits.  Thus, this appeal is interlocutory.”   It relied on Della Rosa v. Van-Rad Contracting Co. Inc., 267 N.J. Super. 290, 294 (App. Div. 1993).  “A serious injustice might occur if a respondent were required to pay an award for temporary disability and medical services and then be unable to obtain the return of its monies in the event of reversal.  It would also be a matter of concern to petitioner to receive such payments with the prospect of possible repayment being required.”

            The case can be found at Wilson v. Studio I, Inc., d/b/a/ Venture Photography, A-0117-12T4 (App. Div. August 8, 2013).  It is useful case for practitioners in clarifying whether a motion for medical and temporary disability benefits should be heard early in the case or held to the end of the case when all issues will be decided.

The case of Young v. Wackenhut Corporation, 2013 U.S. Dist. LEXIS 14414 (D. N.J. Feb. 1, 2013) demonstrates the importance of providing required FMLA notice to eligible employees.

            Jacqueline Young, a Payroll Specialist, advised her employer, The Wackenhut Corporation (hereinafter “TWC”), of her interest in maternity and FMLA leave in November 2008 when she first found out that she was pregnant.  On April 30, 2009, she sent the HR Director an email regarding her “maternity and FMLA leave.”  She supplied the HR Director with leave of absence forms and a doctor’s note putting her out of work.  She went out on maternity leave on June 12, 2009. 

            TWC did not provide any notices as required under the FMLA.  This turned out to be the key fact in the case.  Specifically, the company did not provide the FMLA Eligibility Notice, the Rights and Responsibility Notice, and the Designation Notice.  Instead after months of leave, company representatives called Young on November 30, 2009 and told her that her leave had expired and that she needed to return to work.  This was the first time that TWC reached Young, although Young had called and emailed the company before this date.  The company also told Young that it would need a return-to-work note from her doctor.  On December 1, 2009, the company terminated Young’s employment for failing to provide a return-to-work note and for exhausting her FMLA leave.

            Young sued under the FMLA and argued that the company violated her rights under the FMLA because she was never informed that she had to return to work by November 19, 2009, nor provide a doctor’s note.  The District Court first noted that the company failed to provide Young with “individualized notice” as required by the FMLA. It rejected the company’s argument that an employer’s inclusion of a summary of an employee’s rights in an employee manual constitutes “sufficient notice.” Even though all employees had access to an employee handbook both online and at the HR office, the court held 29 C.F.R. 825.300 specifically requires compliance with the Eligibility Notice, Rights and Responsibility Notice and Designation Notice. The employer is also required to advise on designation whether it will require a return-to-work note.

            TWC argued that even if it had not complied with FMLA notices, plaintiff could not prove any real prejudice to her.  The company maintained that Young took more than her allowed 12 weeks of leave and should not be able to advance an FMLA claim.  Young countered that had she gotten the appropriate notices up front, she would have known her expected return-to-work date and she could have avoided termination.  The court said, “TWC’s argument ignores the fact that the November 30, 2009 telephone call between Plaintiff and Winter Lemon and Doris Wallace was the first time Plaintiff was formally told by TWC that her FMLA leave time had been exhausted.” 

            The Court relied on prior New Jersey case law, particularly Conoshenti v. Public Serv. Elec. & Gas Co., 365F.3d 135, 143 (3d Cir. 2004) for the proposition that an employee has a right to make an informed decision about structuring leave time and planning recovery so as to preserve job protection. 

            This case is consistent with recent FMLA amendments which allow employers to retroactively designate FMLA time, but only where such designation does not prejudice the rights of the employee.  In this case, the employer’s failure to provide individualized notice created the initial problem; the subsequent attempt by the employer to retroactively designate time off on maternity leave failed since the employee had a strong argument that had she received notice promptly, she could have structured her leave so as to return to work by November 19, 2009.  Most importantly, the case underscores why it is so crucial for employers to utilize appropriate FMLA notice forms.  Having an FMLA policy in an employee manual and online is wise but it cannot substitute for specific notice requirements.

Adam Weiner worked for the Elizabeth Board of Education and received an award of 100% total and permanent disability on October 18, 2000.  That entitled him to $480 per week for 450 weeks and thereafter.  That award was reduced on January 9, 2001 to $340.98 per week due to the social security disability offset rate. 

            The key development in this case occurred on April 1, 2002, when Mr. Weiner began receiving an ordinary disability pension benefit.  He did not disclose his receipt of ordinary disability pension benefits to the Board of Education, so the Board kept paying him $340.98 per week. 

            On April 29, 2010, the Board sought approval to access Mr. Weiner’s pension records to determine if it was entitled to an offset.  On August 10, 2011, Weiner and the Board entered into a consent agreement reducing Weiner’s disability rate going forward to $222.39. But there was no agreement on past overpayments of $57,753.33.

            This action was filed by the Board to obtain reimbursement for the overpayments between April 1, 2002 through August 10, 2011 totaling $57,753.33.   A hearing took place on August 1, 2012, and on August 29, 2012 the Judge of Compensation denied the Board’s motion for reimbursement based on the conclusion that petitioner did not have the ability to repay the funds.  The Board of Education then appealed.

            The Appellate Division was guided by the principle that “an underlying theme of the workers’ compensation law is that there should not be duplicative payments for the same disability” (citingYoung v. Western Elec. Co., 96 N.J. 220, 231 (1984).  The Court said that there is a two-step process: first, the Judge of Compensation must determine if petitioner was unjustly enriched for which the respondent has the burden of proof.  Second, the respondent can then “institute enforcement proceedings in the Law Division . . . which may be treated as a summary proceeding.”Hajnas v. Engelhard Mineral & Chemical Co., 231 N.J. Super. 353, 363 (App. Div. 1989). 

            The Court said, “It is considered unjust enrichment to permit the recipient of money paid under mistake of fact to keep it, unless the circumstances are such that it would be inequitable to require its return.” (citations omitted).  In this case, the Court felt that the Judge of Compensation did not take a detailed look at the ability of the petitioner to make reimbursement payments.

No evidential hearing was held.  The compensation judge’s finding that Weiner was unable to repay the money, and therefore, it would be inequitable to order reimbursement, was supported solely by ‘several years of his Individual Income Tax Returns, the most recent of which shows an annual salary of $17,295 for 2010.’ No statement of assets and liabilities evincing Weiner’s net worth was produced.  Further, no statement of income and expenses was considered by the judge of compensation.

            The Court reversed and remanded fur further proceedings.  “We will not indulge in hypothetical speculation of a net worth which would support the immediate return of the payments, which all parties agree, should never have been made to Weiner. Nor will we reach a conclusion based on incomplete facts concerning whether, after considering Weiner’s income and expenses, a payment plan would be appropriate.”

            This case can be found at Weiner v. Elizabeth Board of Education, A-0627-12T2 (App. Div. July 15, 2013).  It is an important case for employers for a number of reasons.  The Appellate Division endorses the right of the employer to obtain reimbursement of benefits that are overpaid to the petitioner, including payments from a disability pension.  It is also important because the situation in this case is rather common, namely that someone receiving workers’ compensation later obtains a disability pension without that information ever getting to the employer or carrier on a timely basis.  Lastly, the case is significant because it sets forth specific requirements for each party in an unjust enrichment claim.

John Machiaverna worked for the City of Newark as a firefighter since 1988.  He filed a workers’ compensation claim for his left knee in 2008, alleging that repeated work stressors over many years caused extensive knee problems and a need for knee replacement surgery in May 2007.  He contended that his knee problems were due to regular climbing of extension ladders and stairs, crawling through buildings and carrying people out of buildings. The City denied the claim and put petitioner to his proofs.

            During the testimony at trial, petitioner was asked if he had ever suffered any injuries in his work career. He testified that he had no previous injuries to his knee or hip.  That testimony fell apart on further questioning.  He then admitted that he injured himself in 2002 when a piece of sheetrock gave way during a fire, causing injury to his left leg. He next admitted on cross examination that he had arthroscopic surgery on his left knee in April 2002.

            The petitioner was seen by four IME doctors, two for each side.  The Court noted that he “lied to all four doctors who examined him because he failed to disclose his prior left knee injuries.” The Judge also commented that he initially failed to admit to having prior knee surgery in April 2002 and failed to admit two incidents in 2001.  The IME doctors testified in court, and their testimony was critical in proving fraud.

  Dr. Canario for respondent said that petitioner had not told him about a previous surgery to his left knee in 2002. In the opinion of Dr. Canario, petitioner’s size and weight were major factors in his knee problems.  Petitioner was six foot five inches tall and weighed 345 pounds.  Dr. Wong for petitioner stated in testimony that petitioner had not told her about his 2002 knee surgery.  Dr. Kulkarni for petitioner also said that petitioner had not told him about three prior knee injuries. 

The Honorable Theresa Yang, Judge of Compensation, found that petitioner was not a credible witness.  She held that in concealing his prior knee injuries and surgery, petitioner committed fraud as defined by the New Jersey Fraud Act, N.J.S.A. 34:15-57.4 She therefore dismissed the case.

On appeal, petitioner argued that his due process rights had been violated because he was “deprived of the opportunity to defend himself against the court’s allegations of fraud.” The Appellate Division categorically rejected that position.  “There was sufficient evidence to support Judge Yang’s credibility assessments and her determination that a violation ofN.J.S.A. 34:15-57.4 (c) (1) had occurred.”  The Appellate Division held that petitioner failed to prove an occupational claim. 

This case is important because it shows that Judges of Compensation are following the statutory law under the New Jersey Fraud Act.  It is not necessary for an employer to prove a claimant was working while on temporary disability benefits to establish fraud.  That is just one issue in a fraud case.  If a claimant deliberately misrepresents or conceals prior medical information that is relevant to the claim, that in itself constitutes fraud.  The case also shows how important it is for defense counsel to get prior records, whether attacking credibility or attempting to prove fraud.

Bobby Robinson was injured working at a construction site in Asbury Park, N.J. when a jack hammer “kicked back” and knocked him off a ladder in December 2006.  He filed two workers’ compensation petitions:  one against Tishman Construction Corporation and the other against Air Joy Heating and Cooling, Inc.  The two companies asserted joint responsibility for workers’ compensation benefits and an order approving settlement was entered in the Division of Workers’ Compensation.

            During the receipt of workers’ compensation benefits, Robinson also brought a civil suit against Tishman Construction Corporation (hereinafter “Tishman”).  Tishman filed an answer to the complaint contending that Robinson’s suit was barred by the exclusive remedy provision of N.J.S.A. 34:15-8, which prohibits civil suits against employers except in the case of intentional harm.  The question before the court was whether Tishman was in fact Robinson’s employer.

            The construction site in Asbury Park was owned by Paramount Homes, which wanted to build three residential units on its property.  Paramount contracted with Tishman to provide administrative and supervisory staff for the site and to monitor labor levels and equipments as well as manage trade contractors.  Tishman then entered into a contract with Air Joy as the HVAC subcontractor for the site.

            Air Joy’s job was to install exhaust vents by cutting out duct openings in the exterior walls.  However, Air Joy could not use its own employees to do this.  The Local 595 Laborers Union (Local 595) claimed this project, and since Air Joy did not have any contract with the Union it could not hire union employees directly.  Air Joy relied on Tishman to do this because Tishman was a signatory to the labor union.  Air Joy would tell Tishman’s construction superintendent how many laborers were needed, and then Tishman would provide the laborers through the union.

            Robinson was told to report to the construction site in August 2006.  He reported to Kenny, the Air Joy foreman.  Robinson said that while on the site Air Joy employees directed his work.  However, he submitted his time sheets to Tishman’s labor foreman.  Tishman employees gave the final sign-off on the time sheets before sending them to payroll.  Tishman paid Robinson directly and then charged Air Joy back for his wages.  The payor on the checks was Tishman.  Before he received a paycheck, Robinson would have to show his Social Security card and driver’s license to the appropriate individual at Tishman. 

            Tishman’s project foreman testified that Robinson worked for Air Joy on loan from Tishman.  Tishman’s project foreman patrolled the site for safety issues and checked on employees.  Tishman retained the right to fire union workers and had exercised such power in the past.  When Robinson was injured, a Tishman employee called the ambulance that took him to the hospital, and Tishman filled out the accident investigation report.

            The trial court found that Tishman was Robinson’s general employer and Air Joy was its special employer.  That gave both companies immunity from civil suit.  The Court of Appeals affirmed that decision, noting that both companies shared in responsibility for the workers’ compensation claim. The Court said that it was clear that Tishman was a general employer. “There was an implied contract of hire based upon the fact that plaintiff’s services were procured by Tishman through his union, he performed work, and was paid.  Tishman paid his wages.  Tishman had the right to control the work and the power to both hire and discharge him. Tishman was plaintiff’s employer and is entitled to the immunity provided by the Act.”

            This case shows that employers benefit from joint employer situations such as general and special employer relationships. Both the general and special employer are entitled to immunity from civil suit in the case of injury to a borrowed employee.  The case may be found at Robinson v. Tishman Construction Corp. of New Jersey, A-1370-11T4 (App. Div. June 28, 2013).

The words “fitness for duty” do not appear in the New Jersey Workers’ Compensation Act, but the issue is of paramount importance to employers and employees in many workers’ compensation cases.  In New Jersey the need a fitness exam is often compelling because medical and temporary disability benefits end at maximal medical improvement often without any comment from the treating physician about whether the employee can return to work.  When workers’ compensation benefits end, the focus often turns next to whether the employee can return to work and perform the essential job functions.  This is not for the Judge of Compensation to decide in New Jersey.

            When can an employer require a fitness-for-duty examination in a workers’ compensation setting?  Practitioners must differentiate between employees who are out of work and employees who are working.  When an employee seeks to return to work following a workers’ compensation absence and there are restrictions imposed by the treating doctor, a fitness-for-duty exam is appropriate.  In fact, New Jersey physicians often seek guidance from FCEs, functional capacity examinations.  In contrast, when an employee with a workers’ compensation claim is working, an employer cannot request a fitness exam absent a business reason. A medical evaluation of an employee can be required by an employer under the Americans with Disabilities Act and under state disability law under certain circumstances. The ADA standard is “job related and consistent with business necessity.” 42U.S.C. 12112(d)(4). 

            It is important to appreciate differences between the New Jersey Workers’ Compensation Act and laws in other states.  Many states have a requirement for vocational rehabilitation. New Jersey does not.  Awards for partial permanent disability in New Jersey are not generally dependent on how long an employee has been out of work but on the level of functional loss in the injured body member.  New Jersey compensation law does not provide job protection, except against retaliation for filing a workers’ compensation claim.  Temporary disability benefits and medical benefits end at maximal medical improvement in New Jersey.  Whether the employee returns to work may not matter all that much as far as the outcome of a workers’ compensation claim but it matters to the employee and employer for obvious reasons.

            Workers’ compensation cases suddenly merge into labor law at the return to work stage.  It is outside the power of a Judge of Compensation to order an employer to return an employee to work.  However, employees have rights under the Americans with Disabilities Act, the Family and Medical Leave Act, and the New Jersey Law Against Discrimination that impact on return-to-work status.  Many workers’ compensation claimants are covered under the ADA and NJLAD but these laws do not automatically mean the employee must be reinstated.  An employee with a disability must be able to perform the essential functions of the job with or without reasonable accommodation. 

            How then do employers decide whether an employee who has been out of work  with a serious injury is fit for duty?  Medical and legal guidance is crucial.  From a medical vantage point, employers can reach out to treating doctors, occupational physicians or physiatrists for advice on fitness for duty.  As mentioned above, FCEs are a wonderful tool that provide objective and scientific information about ability to perform essential functions. For this reason, treating doctors routinely ask for FCEs before giving opinions on restrictions and ability to perform job duties.   From a legal standpoint, it is important to consider the application of disability and leave laws that may apply.

            Here are some common traps that employers fall into in fitness assessments:

            * The Ambivalent Treating Doctor Syndrome

            Quite often the treating doctor imposes serious job restrictions that carry on for many months.  There may be severe restrictions against lifting, bending, reaching and performing other physical functions. Light duty may be offered. After maximal medical improvement is reached and compensation benefits end, the employee will often contact the employer to return to work. When the employer expresses concerns about the medical restrictions, a short note may suddenly appear from the treating doctorremoving all restrictions.  This stunning turn of events leaves employers shaking their heads. 

            * The “Wing It” Return-To-Work Note

            New Jersey is blessed with highly skilled surgeons in the workers’ compensation arena.  However, surgeons are not always the best choice when it comes to deciding whether the employee can do a particularly difficult job.  A good fitness-for-duty examination requires time, information and medical expertise.  The job description must be read and considered, and the physician must speak with the employee about job duties.  In addition, FCEs should be analyzed to see that the testing reflects the actual job duties to be performed.  Cryptic medical notes following a serious surgery stating, “Bill may return to work full duty” without analysis or any indication that job description has been analyzed are more often than not “wing-it” notes.  There are risks to the employee who is returned to a job that he or she cannot safely perform, and a well intentioned “wing-it” note can do more harm than good.

            * Reflexively Turning to Treating Doctors

            When it comes to assessing fitness for duty, the best choice is generally an occupational physician or physiatrist who specializes in this area of medicine and has an understanding of reasonable accommodation requirements. These experts often have training in biomechanics and are willing to expend the time it takes to fully appreciate the job duties and consider possible accommodations. There is simply no substitute for thorough analysis. The idea that fitness assessment is as simple as scribbling on a note pad could not be further from the truth.  Yet all practitioners continue to see treating doctors hurriedly write “full duty” without any analysis at all of the job requirements or previous restrictions.

            * Asking the Comp Adjuster Whether the Employer Must Reinstate

            This is also a very common mistake that employers make in New Jersey.  The reason this happens is that many employers erroneously think that return-to-work issues are decided in comp court.  Almost every adjuster has been asked more than once for advice from an employer on whether the employer can terminate or must reinstate.  This is a complex medical/legal inquiry with significant labor law implications that should be put to house counsel or outside counsel for guidance. 

            Developing a return-to-work team is the best solution. There is an important role on this team for counsel, HR managers, claims professionals, supervisors, nurse case managers, and medical experts.  It is a fact of life that many employees post-injury cannot return to their former job while many others can and should be reinstated.  The process is complex but can be handled effectively with a consistent and comprehensive approach.