State News : New Jersey

This week the New Jersey Appellate Division decided Hager v. M&K Construction, A-0102-18T3 (App. Div. January 13, 2010).  The issues of whether an employer must reimburse an injured worker for the costs of medical marijuana and whether such a court order would violate federal law have been the source of much controversy in the Division.  Hager is the first published opinion in our state to address these issues.

The facts can be briefly summarized as follows:  petitioner, then 28-years-old, was injured in 2001 working on a construction site for M&K Construction when a truck delivering concrete dumped its load onto him.  M&K denied the claim and stated that it was investigating the matter.  For reasons not made clear in the reported decision, the trial did not begin in workers’ compensation until 15 years later in November 2016.   During the course of the trial M&K stipulated that petitioner had sustained a compensable accident. However, the employer opposed petitioner’s claim for total and permanent disability and opposed petitioner’s request to reimburse him for the cost of marijuana under the New Jersey Compassionate Use Medical Marijuana Act (MMA).

During the many years since the date of injury, Mr. Hager endured chronic disabling pain and underwent multiple unsuccessful lumbar surgeries.  At trial he described his pain as starting in his lower back and radiating down his entire left leg to his toes.  He said that the pain affected every activity of his daily life and that he could only stand for a half hour to an hour at a time.  Lying down lessened the pain only marginally. He became dependent on the use of opiates.  He sought care with a chiropractor.  At various points over the years he was prescribed Oxycontin, Oxycodone, Valium, Lyrica and other pain medications. 

Petitioner saw Dr. Joseph Liotta in April 2016, who diagnosed him with post-laminectomy syndrome with chronic pain from a spinal nerve injury.  Petitioner was also experiencing side effects from his use of Oxycodone.  Dr. Liotta provided the required documentation for petitioner’s enrollment into the New Jersey MMA, providing him with a prescription for medical marijuana.  He opined at trial that petitioner will need marijuana to manage his pain for the rest of his life.  He also said that chemical addiction to marijuana is very weak compared to the more potent addiction to opioids, which can lead to death and many other severe side effects.

At trial petitioner testified that as a result of the use of medical marijuana, he was able to stop taking Oxycodone.  He felt that it provided some relief from incessant pain, and it helped him sleep better. He paid $616 per month out-of-pocket for the prescription of two ounces of medical marijuana.  During trial, petitioner sought a court order requiring M&K to reimburse him for the costs of the medical marijuana.  M&K argued that such an order would violate federal law.

Three other medical experts testified at trial besides Dr. Liotta.  Dr. Cary Skolnick testified for petitioner and opined that petitioner was 100% totally and permanently disabled as a functioning unit with a 65% permanent partial disability for the lumbar spine.  Dr. Gregory Gallick testified for respondent stating that petitioner, who was then in his 40s, could perform light duty work or drive a car and was not totally disabled.  He opined that petitioner had a 12.5% permanent partial disability.  

Dr. Brady, a pain medicine doctor, also testified for respondent.  He is certified to prescribe medical marijuana in New Jersey but has never done so thus far for any patient.  He testified that users of medical marijuana can experience “cognitive difficulties, problem solving cognition, short term memory loss, . . . hallucinations,” as well as an increased risk of lung cancer.  He testified that users of opioids could experience “addiction, tolerance, overdose, death, constipation, depression and sexual dysfunction.”  He said that marijuana is less addictive than opioids, and he felt petitioner was addicted to opioids and may be addicted to marijuana.  He felt that the use of marijuana had not been shown in the literature to be helpful to people with non-malignant back pain.  In his opinion, the only measure petitioner could take for his back pain was physical therapy.

The Judge of Compensation ruled that petitioner was disabled to the extent of 65% of partial total with 50% attributed to his orthopedic condition and 15% attributed to the effects of medical marijuana.  The judge ordered M&K to reimburse petitioner for the costs of medical marijuana and related expenses.  The judge was not persuaded by Dr. Brady’s position that petitioner should “simply deal with his pain.”  The Judge commented that this position was “unacceptable as inhumane and contrary to the law concerning an employer’s obligation to treat.”  The judge further noted that the only treatment choices outlined by the experts were opioids and/or marijuana.  “This Court concludes that, if the only choice for petitioner is between opioids and marijuana, then marijuana is the clearly indicated option.  Both modalities present significant downsides in terms of adverse consequences and risks, but a comparison leads inescapably to a conclusion that marijuana is the appropriate option.”

Both sides appealed aspects of the decision.  Regarding the issues raised by M&K, the Appellate Division addressed five separate arguments:

1) Does the Controlled Substance Act (CSA) which makes it a crime to manufacture, possess or distribute marijuana, preempt the New Jersey MMA?

The Appellate Division disagreed with the employer’s argument that it was impossible to comply with the MMA without violating the CSA.   The Court began by observing that the MMA decriminalized the possession of a certain amount of marijuana for medical use.  One of the Act’s purposes was to protect from arrest and criminal penalties those patients who use cannabis to alleviate suffering.  The Court noted that the MMA shields qualifying users of medical marijuana from civil penalties and provides an affirmative defense to patients who are properly registered under the statute but are nevertheless arrested and charged with possession of marijuana.

The Court reviewed two state decisions in New Mexico and Maine dealing with the question of whether their medical marijuana legislation was preempted by the CSA.  New Mexico held it was not preempted, but Maine held that it was preempted.  The Appellate Division found that the CSA only preempts a state law that requires the performance of an action specifically forbidden by the federal statute.  The CSA makes the possession, manufacture, and distribution of marijuana a criminal offense, “But an employer’s reimbursement of a registered MMA patient’s use of medical marijuana does not require the employer to commit those offenses.”  The Court added:

The MMA does not require an employer to possess, manufacture or distribute marijuana – the actions proscribed by the CSA.  Because it is not physically impossible to comply with the CSA and the MMA, there is no positive conflict between the laws.

2) Does the MMA violate the CSA by aiding and abetting in the commission of a crime?

The Court considered the argument that the MMA puts M&K in the position of aiding and abetting a crime.  The Appellate Division gave this argument short shrift:

Under the circumstances presented here, M&K is not an active participant in the commission of a crime.  The employer would be complying with an order requiring it to reimburse a person for the legal use of medical marijuana under this state’s law. M&K has not established the requisite intent and active participation necessary for an aiding and abetting charge.

The Court also said that “one cannot aid and abet a completed crime.” Petitioner would have already obtained the medical marijuana before M&K would reimburse him.

3) Does compliance with the court order expose M&K to the threat of federal prosecution?

The Court addressed this argument by observing that there has been tolerance from the federal government of state medical marijuana laws.  Since December 2014, “congressional appropriations riders have prohibited the use of any Department of Justice funds that prevent states with medical marijuana programs . . . from implementing their state medical marijuana laws.”  The Court said:  “Despite the enactment of medical marijuana legislation by the majority of states, M&K could not apprise this court of any federal prosecution against an employer or insurance carrier for its reimbursement of authorized medical marijuana treatment.”

4) Should a workers’ compensation insurer be treated the same under the MMA as a private health insurer?

N.J.S.A. 24:6I-14 states, “Nothing in the MMA shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of cannabis, …” The Appellate Division noted that under Title 17, in defining “health insurance,” the Legislature expressly stated that “health insurance does not include workers’ compensation coverage.” N.J.S.A. 17B: 17-4.  The Court said that only two categories of entities may not be required to reimburse the costs of medical marijuana:  a government medical assistance program or private health insurer.   In essence, the Court held that this argument failed because workers’ compensation is not considered under the law to be equivalent to a private health insurer.

5) Can medical marijuana be considered reasonable and necessary under the New Jersey Workers’ Compensation Act?

The Appellate Division considered a number of precedential cases that have liberally construed medical treatment that has helped patients cope with chronic pain.  In this case the Court observed that Dr. Liotta felt petitioner’s pain was irreversible and that he would need to manage pain for the rest of his life.  The Court concluded that the use of medical marijuana was reasonable and necessary for the treatment of petitioner’s chronic pain under the circumstances of this case.

The Hager case is now the leading case in the State of New Jersey on the issue of whether the MMA is preempted by the CSA and must be followed by judges in the Division of Workers’ Compensation.  If the employer seeks certification from the Supreme Court, it is highly likely that the Court will grant certification.

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

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. 

There are few appellate division cases on the odd-lot doctrine in workers’ compensation, and there are next to none on lack of proficiency in English as a sole factor for odd-lot unemployability.  For this reason it is worth reviewing the recent decision in Avendano v. Target Corporation, A-1609-18T2 (App. Div. December 17, 2019).  

In this case, Avendano suffered serious injuries.  She received an award of 55% permanent partial disability credit 15% for previous loss of function and then reopened the case to obtain an award of 75% credit 55%.  About six months later she reopened the case a second time claiming that she was totally and permanently disabled under the odd-lot doctrine in part because she struggled with the English language and therefore could not find work.  The odd-lot doctrine may permit a judge to find total and permanent disability where an employee obtains an award of permanent partial disability of 75% or more but is unemployable due to factors like advanced age, language difficulties and limited job skills.

The trial consisted of testimony by petitioner as well as testimony by vocational experts on both sides, but there was no medical testimony for reasons not made entirely clear in the decision.  Petitioner stressed on direct examination that she does not speak or understand English.  She testified through an interpreter.  She said that it is very hard for her to read or write English.  She did admit on direct examination that she enrolled in college to learn English but stated that she did not complete the course.

The cross examination of petitioner won the case for Target.  Petitioner admitted that she told the IME doctors for Target that she had attained a level two proficiency in English as a second language classes.  She admitted that she was evaluated by the Target IME doctors without a Spanish interpreter.  She admitted that she passed the citizenship test in English test nine years prior to her testimony.  She also admitted receiving an accounting degree in her native Columbia before coming to the United States.

The Judge of Compensation observed that petitioner answered some questions before the court interpreter finished translation.  The Judge of Compensation did not find petitioner to be credible in her assertion that her lack of knowledge of English contributed to her total and permanent disability.  The judge was also unimpressed with petitioner’s vocational expert because the expert would not change his position on totality even when confronted with evidence that petitioner obtained an intermediate proficiency level in English.  The judge noted as well that the petitioner’s vocational expert failed to review petitioner’s testimony before testifying in court and failed to review certain medical reports.

For these reasons the Judge of Compensation rejected the application for total and permanent disability and left the award at 75%.  Avendano appealed, and the Appellate Division affirmed.  “In determining whether a petitioner is totally disabled under the odd-lot doctrine a judge of compensation may therefore consider the petitioner’s education, training, age, background and substantial ‘unlikelihood of finding employment, absent a charitable employer.’”   The court elaborated on the aspect of difficulty with the English language as a basis for application of the odd-lot doctrine.  “Relevant here, inability to understand the English language can provide the basis for application of the odd-lot doctrine.”

The case is worthy of review because the decision recognizes that inability to understand the English language can provide the basis for an award of total and permanent disability where the injured worker has an award of 75% or higher.  This may be the only modern appellate level case that has specifically focused on lack of proficiency in English as a basis for the odd-lot doctrine.  Unfortunately for petitioner, her testimony did not persuade the judge that she actually had a serious problem understanding the English language given the admissions she made on cross examination.

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

John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

In 2020 we will likely get a published Appellate Division decision that resolves whether a medical provider can bring a medical claim petition in New Jersey where virtually all contacts are in New York State except for where the surgery occurs and sometimes where the claimant lives.  One hint of how the Appellate Division may lean comes from a recent medical malpractice case entitled Pullen v. Dr. Aubrey Galloway, A-1373-18T2 (December 9, 2019). 

The case involved jurisdictional issues between New Jersey and New York in connection with a law suit filed by the widower of Jeanne Pullen, who underwent surgery in New York City to replace her aortic valve but died shortly thereafter.  Mr. Pullen, the widower, filed a medical malpractice case against Dr. Aubrey Galloway who performed the surgery at NYU Langone Medical Center in New York City.  Dr. Galloway practiced only in New York and saw patients only in New York.

The decedent lived in New Jersey and her widower filed the medical malpractice case in New Jersey.  The decedent was referred to Dr. Galloway by her New Jersey licensed physician, Dr. Edwin Blumberg. Dr. Galloway argued that there was no jurisdiction over him in New Jersey. He had been licensed to practice in New Jersey between 2004 and 2009 but he had never actually practiced in New Jersey.

Pullen countered that the New Jersey referring doctor, Dr. Blumberg, had a personal friendship with Dr. Galloway.  He also argued that Dr. Galloway solicited business through commercials and local television stations.

The trial court dismissed the lawsuit for lack of jurisdiction in New Jersey over Dr. Galloway.  The Appellate Division said, “General jurisdiction exists when the plaintiff’s claims arise out of the defendant’s continuous and systematic ‘contacts with the forum state.’”  The Court added, “Applying these well-established standards, Dr. Galloway is not subject to personal jurisdiction in New Jersey. Dr. Galloway does not have continuous and substantial contacts that would subject him to general jurisdiction in New Jersey.  Dr. Galloway lives and practices medicine in New York.  He certified that he had a New Jersey medical license only between 2004-2009 and never actually practiced medicine in New Jersey.”

The Court also rejected the allegation that Dr. Galloway should be subject to jurisdiction in New Jersey because he advertised on local television stations.  “Plaintiff did not identify any actual advertising on local television stations.  Instead, plaintiff merely asserted that Dr. Galloway had engaged in such advertisement.  That contention is not supported by any specific facts such as the nature of the advertising, when and where the advertising was actually aired, and whether the advertisement was directed at New Jersey residents.”

The Court added, “We have previously held that a doctor’s out-of-state treatment of a New Jersey resident does not, in and of itself, establish personal jurisdiction.  Bovino v. Brumbaugh, 221 N.J. super. 432,437 (App. Div. 1987).  In Bovino, we explained that when a patient seeks personal services from an out-of-state physicians those services are not directed towards a particular place; rather, they are directed at the needs of the patient.  In that regard, we noted that it is fundamentally unfair to subject an out-of-state physician to jurisdiction in New Jersey when treatment is provided exclusively in another state.”

The reason this case is important is that in there are many hundreds of MCP cases pending in New Jersey involving New York accidents to largely New York residents who work in New York.  The only contact with New Jersey occurs when the surgeon decides to schedule the main medical procedure in the State of New Jersey where there is no fee schedule —  unlike New York.  All the treatment up to surgery has occurred in New York State, the employment contacts are in New York, yet the surgical procedure is shifted to New Jersey solely to avoid the New York fee schedule. When the carrier and employer insist on paying the surgeon under the New York fee schedule, the medical provider hires a New Jersey law firm who files a Medical Claim Petition in the New Jersey Division of Workers’ Compensation to get paid the difference between the New York fee schedule and the bill for the procedure.

It would seem under the rationale in Pullen to be completely insufficient for the Division of Workers’ Compensation to accept jurisdiction over the fee dispute in a situation like this where all the contacts were in New York. There are no continuous or systematic contacts with New Jersey, to quote the decision in Pullen.

Thanks to David Lustbader, a prominent New Jersey practitioner, for sending this case to our attention.

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

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 case of Martin v. Newark Public Schools was the subject of an earlier blog on October 7, 2019.  At the time of that blog, the case had not been approved for publication.  On December 13, 2019, the Committee on Publications decided to approve Martin for publication.  It is now the only published decision in New Jersey workers’ compensation on this specific issue and therefore the leading case on requests for continued opioid use. 

The case involved a not uncommon situation where two physicians disagreed on the need for long-term opioid use. The treating physician, Dr. Patricio Grob, treated petitioner from 2011 to 2017 but then released petitioner in September 2017, writing one final prescription of Percocet as a courtesy to Mr. Martin. Dr. Grob felt that Percocet was poorly controlling Martin’s pain.  He also said that continued Percocet would “not manage petitioner’s radicular complaints . . . and could complicate his recovery.”  After six years of treating petitioner with Percocet, Dr. Grob concluded that prescription pain medication would never improve Martin’s condition. Dr. Grob recommended surgery but petitioner declined surgery due to an unrelated blood condition.

Martin next saw Dr. Harris Bram, an expert in pain medication, for a one-time evaluation.  Dr. Bram noted that petitioner had disc desiccation at L4-5 and L5-S1 and a disc herniation at L5-S1.  Dr. Bram recorded somewhat contradictory statements from petitioner.  In taking petitioner’s history, Dr. Bram said Martin reported opioid medication provided only “small pain relief.”  But he also self-reported in other records that Percocet abated his pain symptoms by approximately 60%.  Dr. Bram concluded that long-term use of opioids would be reasonable for petitioner.

Administrative Supervisory Judge, the Hon. Philip Tornetta, found that petitioner failed to prove continued Percocet treatment would reduce Martin’s pain or permit him to function better.  He commented that Dr. Bram did not provide medical evidence that long-term Percocet use would permit petitioner to function better.

The Appellate Division affirmed the dismissal of petitioner’s motion, first citing to an older case involving a motion for physical therapy.  In Hanrahan v. Twp. Of Sparta, 284 N.J. Super. 327, 336 (App. Div. 1995) the Court found that the claimant who was seeking further physical therapy was required to show the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.”  The Court applied this logic to the Martin case in respect to the request for long-term opioids:

Here, the judge found credible the testimony of Dr. Grob that continued prescribing of pain medication did not, and would never, heal petitioner or relieve his condition.  During the six years he treated petitioner, Dr. Grob concluded Martin’s pain had not been alleviated with therapy or medication.

The Court concluded, “We are satisfied there was sufficient, credible evidence in the record to support the compensation judge’s determination that further treatment with opioid medication would not cure or relieve Martin’s injury.”

The emphasis on this case at both the trial level and appellate level was on improvement of function.  The fact that the treating doctor had observed poor pain control from Percocet over six years posed serious problems for petitioner to overcome at trial.  The case must be seen in the context of the opioid epidemic in the United States.  It demonstrates that employers can actually do something about long-term opioid use under certain situations.  Just testifying in court that opioid medication makes one feel good will not suffice.  There must be medical evidence of improvement of function under this significant decision.

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

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. 

We are in holiday season.  Many private and public entities have holiday parties this time of year, and inevitably there will be accidents either going to or from the party or perhaps slipping and falling on the dance floor.  What do employers need to know and what can they do to avoid such claims when they schedule weekend or after-work parties?

First, the employee must prove that the event is a regular incident of employment and that the purpose of the event was to promote an end greater than improvement of morale.  If it is all about morale, it is not compensable.  A fundraiser might be an example of an event whose purpose promotes something greater than morale. 

But even if the employee cannot meet this test, the employee will prevail if he or she can show that attendance was compulsory.  That which is required is considered to be work-related.  Now realistically, most employers do not send out invitations to holiday parties saying that attendance is compulsory.  But that is not the only way for an employee to prove attendance was compelled.  If the person in charge of the party says, “Hi Sam, I sure hope you are going to make the holiday party on Saturday,” Sam may testify at trial that he had a reasonable basis to believe that his attendance was compelled.  If the person in charge of the party keeps asking people whether they are attending, and then presses for explanations on why they are not planning to attend, or suggests that “the boss will be disappointed,” a Judge of Compensation may very well find that the employee had a reasonable basis to believe that attendance was compelled. So the test of compulsion is not whether the words “mandatory attendance” are on the invitation but whether the employee had a reasonable basis to believe he or she must attend.

When employers lose cases involving injuries going to or from holiday parties or slip and falls at the party, it is mostly because the injured employee can convince the Judge of Compensation that he or she felt compelled to attend.  If that is the case, the ride to the party and the ride home is covered by workers’ compensation.  Car accidents are the main cause of injuries, often very serious ones, and the risk of injury may be compounded by use of alcohol or wintry road conditions.   Unfortunately, the New Jersey law does not protect employers from injuries caused largely by intoxication because the current law requires the employer to prove that no cause – other than the use of alcohol – contributed to the accident.  So if you have someone who is intoxicated above the legal limit and the roads are slippery when the accident happens, the employer will lose because there is another reason for the accident besides intoxication, namely the slippery road conditions.  Needless to say, we are in December.

The best way for employers to insure that they do not have to pay for holiday party accidents is to make it crystal clear that attendance is optional.  Put that language all over the invitation.  Make it clear that there will be no names taken of attendees, and non-attendees, and do not pester people who have no plans to attend.  High level employees should not be walking around asking employees why they are not coming to the party.   This may make it harder to guarantee a number of attendees for the restaurant, but that is far better than having to pay a death claim for someone who is tragically injured driving home from a holiday party.

Bear in mind that holiday parties during work hours are a completely different subject.  These parties where people are actually at work and getting paid during normal work hours are almost always covered.   So if there is a party at lunch at Lincoln Company in the cafeteria, and someone slips and falls on the floor while grabbing an egg nog, that injury will be held to be compensable because on-premises injuries are compensable unless they constitute a deviation from employment.

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

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. 

Few scenarios generate more questions from clients than whether a carrier or third party administrator in New Jersey can cut off temporary disability benefits when an employee engages in part-time employment while receiving temporary disability benefits for the job-connected injury.   This is a much bigger issue than it was 30 years ago precisely because so many New Jersey employees have more than one job. Consider a situation where the carrier starts to pay temporary disability benefits to an injured worker but finds out a few weeks later that the worker has continued to work in his or her part-time job without losing any time from that second job. Should temporary disability benefits be stopped?

We begin the answer with the language in the statute under N.J.S.A. 34:15-38, which states that temporary disability benefits must be paid for days or fractions of days that the employee is unable to work.  Such benefits end when “the employee is able to resume work and continue permanently thereat.”  Note that the statute does not say “resume work at the injury-connected job.”  It simply says “resume work.”  The argument that many workers’ compensation professionals make is that if an employee returns to work anywhere, temporary disability benefits should cease.

There are no helpful reported cases on the meaning of “resume work.”   Not getting paid may be a factor according to a reported appellate division case entitled, Tobin v. All Shore All Star Gymnastics, 378 N.J. Super. 495 (App. Div. 2005).  In that case the petitioner, the owner of the company, suffered work injuries leading to the receipt of temporary disability benefits.  She was released by her treating doctor to do light duty work but she said that she could not use her shoulder.  She used to do physical work at the gym which she owned, and said that there was no light duty work for her.  However, she admitted that she was in fact supervising operations at the gym without pay.  She was able to do this because it did not involve use of her injured shoulder.  The carrier stopped temporary disability benefits.

The Judge of Compensation found that temporary disability benefits should not have been stopped solely because petitioner could supervise activities at the gym.  The Appellate Division affirmed the ruling in favor of petitioner, noting that the ability to do light or intermittent work is not inconsistent with the receipt of temporary disability benefits.  One key fact in this case, however, was that petitioner was not being paid.  That makes this case distinguishable from the question posed in this blog.

Let us next consider the unreported case of Morris v. Township of Washington, No. A-2374-99T2 (App. Div. January 16, 2001).  In that case, the holding was that an injured employee in receipt of temporary disability benefits could do some occasional part-time realtor work while recovering from her work injuries without losing her temporary disability benefits.  This case is much more on point to our question, but it is unreported and therefore not precedential.  The emphasis in this case was on occasional work being done by a part-time realtor, who did actually receive commissions from that work.

As in all legal situations, the facts are always crucial.  If the injured worker who is out of work is only making phone calls in the morning to call in substitute teachers for his part-time job, most if not all judges would be likely to find that temporary disability benefits should still continue.  Other judges may focus on the number of hours involved in the part-time job or the physicality of the part-time job.  If the part-time job is physically demanding for a person who is out of work and receiving temporary disability benefits, that information would likely lead to cessation of benefits. In cases like this, it is wise to send the information about the part-time job to the treating doctor for his or her consideration.  This information could bear on whether the employee has reached maximal medical improvement.

One other factor that should be mentioned is whether the injured employee has denied working part-time only to be later found to be doing part-time work while receiving temporary disability benefits.  This fact pattern moves the case more to a more powerful argument of fraud or deliberate misrepresentation.  Adjusters and treating doctors should ask at the outset if the employee does have a part-time job and if the employee is performing that work during the treatment phase of the case.  Counsel for petitioners often point out that their clients are not aware that they are doing anything wrong by continuing in their part-time employment, particularly if the work is not physical.

The best argument for employers is that temporary disability benefits should not be available for someone who is found to be working a substantial number of hours in a part-time or near full-time second job.  Frankly, it is an unsettled area of law. When the right case reaches the appellate division or Supreme Court, greater guidance will emerge for practitioners.  Most employers and adjusters are very practical in responding to this situation.  They realize that doing a few hours of week of a non-physical nature will not be viewed the same by the judge as working 20 or 30 hours per week in a second job while receiving temporary disability benefits.

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

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. 

Effective June 17, 2019, N.J.S.A 34:15-95.6 became law in New Jersey.  This law applies to dependents of public safety workers, who are defined as officers of a paid, partially-paid, or volunteer fire or police department, force, company or district, including the State Police or a first aid or rescue squad.  The purpose of this law is to increase dependency benefits for those who received awards after December 31, 1979.  The statute calls these benefits “supplemental benefits” not COLA benefits.

The statute does not require the supplemental payments to be retroactive to the time of the original award.  Rather the Act is prospective.  Beginning on January 1, 2020, and in each fiscal year thereafter, the dependent of a public safety worker will begin receiving supplemental benefits.  There is a formula outlined below which attempts to create a parallel percentage between the rate of benefits and the max rate in effect at the time of the award with the current max rate. Bear in mind that before 2004, one dependent received only 50% of the decedent’s wages, not the current 70%.

b. The base amount of the weekly supplemental benefits to be paid pursuant to this section during each fiscal year shall be calculated in a manner so that when it is added to the workers’ compensation weekly death benefits initially awarded, the sum of the initial award and the base weekly supplemental benefits shall bear the same percentage relationship to the maximum workers’ compensation death benefit rate for the current fiscal year that the dependent’s initial weekly death benefits bore to the maximum workers’ compensation death benefit rate in effect at the time of the death;

This supplemental benefit is designed to be paid by the Second Injury Fund, not by the employer, carrier or TPA. This law affects public employers of all kinds. The most challenging aspect of the law pertains to notice because there may be dependents potentially eligible for supplemental benefits living in many states.  They are not likely to know about this law change.  Therefore the statute provides as follows:

d. An insurance carrier or self-insured employer responsible for the payment of workers’ compensation death benefits to a dependent shall notify the Division of Workers’ Compensation of the need to have the Second Injury Fund make supplemental benefit payments to the dependent pursuant to this section not later than the 60^th day after the date on which it is determined that the payment of supplemental benefits is required pursuant to this section.  If the insurance carrier or self-insured employer fails to notify the division and that failure results in the payment of an incorrect amount of benefits, the liability for the payment of the supplemental benefits shall be transferred from the Second Injury Fund to the employer until the time at which the insurance carrier or self-insured employer provides the required notice.

Thanks to attorney Steve Cohen, Davis Saperstein & Salomon, P.C., for calling to our attention various issues surrounding this law, including practical problems in providing notice.  Carriers and third party administrators must find a way to identify dependency cases that are currently being paid and that fit the time periods in this Act.  Mr. Cohen also points out that in section b above, the statute refers to “death benefits initially awarded.”  It is unclear whether this provision applies to cases where the carrier or third party administrator voluntarily accepted the case and started making dependency payments without the case ever going through the Division of Workers’ Compensation.  In those situations, there would not even be an award.  Carriers, third party administrators and Joint Insurance Funds generally should consult counsel for advice in complying with this law and its notice provisions. 

This new law does not apply to those who are entitled to receive special adjustment benefits pursuant to N.J.S.A. 34:15-95.4.  In addition, it should be noted that there may be a reduction of benefits by an amount equal to the dependent’s benefits payable under the Federal Old-Age, Survivors’ and Disability Insurance Act, excluding disability benefits paid under that act.

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

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. 

Any decision from the Appellate Division on recreational or social activities is welcome precisely because there have been so few decisions since the 1979 Amendments.  The case of Goulding v. NJ Friendship House, Inc., A-5996-17T3 (App. Div. November 7, 2019) is the most recent decision on this area of law in years.

Kim Goulding worked as a cook for NJ Friendship House, a non-profit organization providing vocational training for individuals with developmental issues.  She would regularly cook and prepare meals for members during lunchtime and afterschool programs.  She worked Monday through Friday, from 10:00 a.m. until 3:30 p.m.

The Friendship House hosted its first “Family Fun Day” on September 23, 2017, and the event was held in the rear parking lot of the employer’s premises. There were recreational activities, food, music, games, and prizes for members and their families.  Volunteers were asked to attend, and some agreed to participate while others did not.  Goulding volunteered right away and arrived before nine a.m. to prepare breakfast.  She stepped into a small pothole around noontime injuring her foot.

Goulding filed a claim petition which her employer denied, and then she filed a motion for medical and temporary disability benefits.  Friendship House contended that her accident did not arise out of her employment.

The Judge of Compensation applied the test set forth in N.J.S.A. 34:15-7. She found that the purpose of the activity was improvement of morale and that it was not a regular incident of employment.  The claim petition and motion were therefore dismissed.  Goulding appealed and argued that she was performing her usual work as a cook at Fund Day, not participating in a recreational activity.

The Appellate Division first noted that there was nothing involved in Fun Day that would take this case out of the basic formula for a non-work recreational event.  This was not a fundraiser.  It produced no benefit for the company in terms of public relations. It was the first time ever for Fun Day and therefore not a regular incident of employment.

The Court further noted that petitioner herself admitted she volunteered and did not feel any compulsion to participate.  To her argument that she was really just doing her regular job as a cook, the Court said, “If an employee chose to help out, the employee could participate in any capacity.  Appellant could have worked at a game, or assisted with prizes.  She chose to set up tables, arrange trays and grill hot dogs.  We cannot conclude the Fun Day was as customary as a lunch or coffee break.”

One of the key factors in this case was that no one was compelled to participate.  The employer handled this the right way in terms of making the whole event optional.  In fact, many employees of the company declined to participate with no adverse consequences to them.  All of the evidence in this case pointed to a recreational activity whose main purpose was improvement of morale.  There was no proof by petitioner of any purpose greater than improvement of morale; nor was Fun Day a regular incident of employment.  Therefore the case was clearly not compensable.

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

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. 

Motions for medical and temporary disability benefits are urgent matters that are treated as such by Judges of Compensation.  Because injured workers are not receiving benefits, motions for medical and temporary disability benefits require all parties to work swiftly to prepare for court hearings.  In the case of Capel v. Township of Randolph, A-1315-18T1 (App. Div. October 10, 2019), the employer never got a chance to argue its defense due to the failure to comply with administrative rules.

Mr. Capel filed a claim petition alleging an injury on May 21, 2018.  He alleged injuries to his neck, back and left shoulder while lifting logs at work.  Respondent filed an answer in which it did not deny an injury to the shoulder or back but did deny an injury to the neck.

Respondent sent petitioner to treat with Dr. Sayde, who opined that petitioner needed left shoulder surgery related to the accident.  Respondent declined to approve the surgery and then sent petitioner for a second opinion with Dr. Montgomery, who also recommended left shoulder surgery.  When surgery was declined,  Capel filed a motion for medical and temporary disability benefits on October 9, 2018.  The Motion sought approval of surgery, appropriate counsel fees, and sanctions for delay in paying temporary disability benefits.

The Judge of Compensation set the hearing for November 9, 2018.  Under the administrative rules, respondent was required to file a response to the motion rebutting the allegations by October 30, 2018.  The answering statement was filed late on November 8, 2018, the day before the hearing.  In the responsive papers, respondent alleged that petitioner actually injured himself in his other job at Samaritan Inn, a homeless shelter where petitioner was living. 

The Judge of Compensation evaluated the papers on both sides.  The Judge noted the delay in timely filing of the answering statement to the motion as well as deficiencies in the opposing papers.  The Judge of Compensation ruled in favor of petitioner based on the failure to meet the filing deadlines and the failure to file appropriate certifications. Counsel for the Township then sought reconsideration, which was also denied.  The Judge of Compensation noted that instead of submitting certifications required by the rules, defense counsel submitted a two-page letter raising various arguments. In that letter defense counsel conceded that two doctors had recommended shoulder surgery.  Defense counsel argued that petitioner lived for free at Samaritan Inn, a homeless shelter, in exchange for work, and counsel submitted handwritten time sheets for April 9, 2018 through June 23, 2018 of work allegedly performed at Samaritan Inn.  The Judge observed that there was no explanation of how these materials were prepared, who prepared them and or whether they were admissible in evidence.   

As part of the motion for reconsideration, defense counsel also submitted certifications of the claims adjuster and Scott Wagner, a co-worker in the Township’s Department of Public Works. The certification of the adjuster violated court rules by being unsigned. Neither document included the required language stating, “I certify that the foregoing statements made by me are true.  I am aware that if any of the foregoing statements made by me are willfully false, I may be subject to punishment.”  See R. 1:4-4(b).

In addition, defense counsel submitted six unsigned statements by co-workers dated November 5, 2018.  These statements also lacked the specific verification required for certifications in lieu of oath.  For these reasons, the Judge of Compensation refused to vacate her prior order in favor of petitioner.

Respondent next appealed to the Appellate Division and argued that the Judge of Compensation should have relaxed the rules to allow respondent to go to trial on the motion.  The Appellate Division held, “In the absence of any competent evidence in opposition to Capel’s claim that the left shoulder injury arose out of and in the course of his employment by the Township while lifting logs on May 21, 2018, there was no need to conduct a plenary hearing or basis to deny the MMT.”

In an interesting comment, the Appellate Division said that both N.J.A.C. 12:235-1.2 and Rule 1:1-2 permit relaxation of the rules to secure a just determination or to avoid injustice, but the Court said that movants who seek relaxation of the rules “bear a heavy burden.”  In this case, the Court noted that the defense motion papers were “woefully late, one of the certifications was unsigned, both certifications lacked the required verification language, and the other submissions were deficient.” Finally, the Court commented that there is no rule in the Division of Workers’ Compensation regarding motions for reconsideration.  Such motions are within the discretion of the court.   The Court said:

R]econsideration should be limited to those cases ‘in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.  D’Atria v. D’Atria, 242 N. J. Super. 392, 401 (Ch. Div. 1990).

This case represents a wake-up call for employers, adjusters and defense lawyers on the importance of responding to motions for medical and temporary disability benefits in a timely fashion and submitting affidavits or certifications that meet the rules.   In this case, one will never know whether the respondent had a valid basis to argue that the petitioner really injured himself at another job because the respondent lost the case before the trial ever started. 

Answering statements for motions for medical and temporary disability must rebut the allegations of the claim in order for defense to get to trial on the motion.  Submitting certifications or affidavits of individuals with particular knowledge that an injury did not occur at work is vitally important, but such certifications should be signed and contain proper verification language.  The rules provide that employers have 30 days to respond to a motion for medical and temporary disability benefits if the motion is filed with the Claim Petition, but if the motion is filed after the Claim Petition has been filed, respondent has only 21 days to respond.  When such motions are received, the defense team should begin work right away in preparing the defense to the motion.  It takes time and effort to interview witnesses and obtain appropriate certifications.

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

John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

When individuals work for staffing agencies, interesting legal questions often arise.  In Uribe v. Quartz Master, A-4071-17T1 (App. Div. May 2, 2019), Alberto Uribe was injured working for On Target Staffing, LLC, a job placement agency.  On Target had a “Temporary Employee Work Agreement” with Quartz Master, where it placed Uribe.  That agreement provided that Uribe needed to discuss any work issues with On Target supervision only, would get his paychecks from On Target, and would notify On Target in the event of a work injury.

Uribe worked at Quartz Master for several years in the warehouse.  His Quartz Master supervisor, Mr. Patel, would tell Uribe what work to do.  Uribe was injured at Quartz Master while performing his job duties and received workers’ compensation benefits from On Target.  He then brought a civil law suit against Quartz Master.

The defense to the law suit filed against Quartz Master was simple:  Quartz Master argued that Uribe was equally its employee as well as the employee of On Target.  Uribe essentially had two employers.  The trial judge agreed with Quartz Master.  The Court analyzed the test for special employment and found that Quartz Master was by law a special employer:  1) Uribe had an implied contract to work for Quartz Master because he accepted work from them; 2) Uribe performed work duties under the direction of Quartz Master; 3) Mr. Patel, his supervisor at Quartz Master, directed his work; 4) Quartz Master essentially paid Uribe’s wage by payment to On Target; 5) Quartz Master had the right to advise On Target if it wanted to get rid of Uribe.

The Appellate Division agreed with the trial judge and affirmed the dismissal of Uribe’s civil suit under the exclusive remedy provision in workers’ compensation.  The Court was persuaded that Uribe was doing the work of Quartz Master for years.  He worked in their warehouse loading trucks with marble and granite slabs. Of equal importance to the Court was that Mr. Patel had the power to direct On Target not to send Uribe to Quartz Master.  The court said it did not matter that Quartz Master never exercised this right:  the company actually had the power to do so. 

When a client company of a temporary agency considers the benefits of working with a temporary agency, chief among them is that the client is not liable for workers’ compensation, as the staffing agency generally contracts to handle workers’ compensation.  Moreover, the client is immune from civil suit.   You could say that the client has the best of both worlds:  immunity from workers’ compensation and civil liability.

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

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.