State News

Natalie Lund, Shareholder at Cousineau, Waldhauser, & Kieselbach has been asked to be the defense co-chair for the 2019 Workers’ Compensation Institute on April 24 and 25, 2019, sponsored by Minnesota CLE.  

The Institute provides a complete update on all the workers’ compensation developments over the last year in Minnesota, with featured guest and attorney speakers. This is the premier Minnesota workers compensation seminar.

We congratulate Natalie for being selected as the co-chair.

On February 25, 2019, the New Jersey Legislature voted to send to the Governor’s desk Senate Bill No. 1967.  The Senate passed the bill on October 29, 2018 and the General Assembly passed it on February 25, 2019. The Governor is expected to sign the bill shortly.

The original bill was intended to provide a cost of living (COLA) for all workers rendered totally and permanently disabled, or to the dependents of workers, who died as a result of a workplace injury after December 31, 1979.  The stated purpose of the legislation was to mirror the Special Adjustment created in the 1979 amendments for that same class of workers injured or killed before December 31, 1979, (RS. 34:15-95.4).  The bill was amended to limit the payment to Public Safety Workers or their dependents in the case of work-related death from workplace injury.

The legislation defines Public Safety Workers in paragraph 4(e): “For the purpose of this section, ‘Public Safety Worker’ means a member, employee, or officer 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.”  Note that this definition does not include hospital EMTs or private fire departments at large plants operated by the private sector.

Funding for the special adjustment comes from an increase in the assessment for the Second Injury Fund which is levied on insurance premiums payable by private employers for their workers’ compensation policies.  A like assessment is made on self-insured companies.  These assessments affect only private sector employers.  The State of New Jersey and its subdivisions are not liable for the Second Injury Fund assessment.  Therefore, the funding is collected from the private sector for which the benefits do not apply.  This results in the bill having no fiscal impact on the state or local budgets, but it will have a fiscal impact on private employers.

Those covered by this bill will be eligible for the special adjustment as of July 1, 2019 but not retroactive to the date of the award of Total Permanent Disability or death of the “Public Safety Worker.”  Going forward, the public employer shall identify those eligible and report them to the Office of Special Compensation.  The public employer will continue to pay at the rate set at the time of the award of permanent disability.  The Second Injury Fund, Office of Special Compensation will pay the amount sufficient to bring the total award to the same percentage to maximum rate for the current year.

Example:        Police officer is injured and deemed totally and permanently disabled as of July 1, 2002.  The officer is earning wages of $900 per week and the maximum rate for permanent total disability is $629 per week in 2002.  The officer receives an award payable at $629 per week for 450 weeks and continuing so long as the officer is permanently disabled under the terms of N.J.S.A. 34:15-12b. (Officer’s salary is sufficient for the maximum rate in 2002).  Effective July 1, 2019, the officer will be paid $629 per week by the employer and will receive $292 per week from the Second Injury Fund by way of the Special Adjustment bringing the officer to the maximum rate for 2019.  Because the officer qualified for the maximum rate at the time of the award, the officer is eligible for the maximum rate in the year of the special adjustment.

The COLA will be reduced for beneficiaries to the extent necessary to ensure that inflation adjusted benefits do not cause a reduction of Federal Social Security disability benefits. COLA benefits are also to be reduced by the original amount of any Social Security benefits (but not the amount of any Social Security disability benefits and any subsequent cost-of-living increase in Social Security benefits), Black Lung benefits, or the employer’s share of disability pension payments received from or on account of an employer.

The COLA will be denied to an otherwise eligible Public Safety Worker who is also eligible for SSD but will not apply.  In virtually all cases, the Public Safety Worker will be eligible for an Accidental Disability Pension, and the Division of Pensions and Benefits will take the offset.

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Prior to joining Capehart Scatchard as Of Counsel, Judge Hickey III (Ret.) served as the Compensation Administrative Supervisory Judge for the State of New Jersey from 1991 to 2009. Previous to his judgeship, he served as a Prosecutor in Gloucester County, New Jersey from 1986 to 1991.

The FDA recently approved the "EyeBox," an eye-tracking test device to help diagnose concussions.  The company that makes the device, Oculogica, Inc., touts that this technology brings in a new era for diagnosing concussion and managing patients. It is marketed to be the first objective diagnostic test for concussion.  In referenced studies the company  claims that the EyeBox had high sensitivity to the presence of concussion and that a negative EyeBox result was consistent with lack of concussion.  We expect to hear more about this given that allegations of traumatic brain injury are common in the workers’ compensation arena.  The Oculogica websitehttp://www.oculogica.com/ emphasizes that the results of the test “cannot be influenced or ‘gamed’ by the patient.

-  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.

There are several pieces of legislation under consideration that affect workers’ compensation. Senate Bill 163 would require every construction contractor that does business with state government to carry workers’ compensation insurance. As usual, business interests oppose the legislation.

House Bill 2143, while only affecting Police or Fire Persons, would expand coverage to PTSD claims where the condition is not alleged to be caused by a single event, but also by exposure to multiple events—a cumulative exposure concept.

House Bill 1005 would require insurance carriers who have issued a PLN denial related to causation based on a medical opinion to also pay for a medical opinion on causation from the claimant’s treating provider or from a doctor to whom the treating provider “previously” referred the claimant.

Senate Bill 934, championed by OIEC, would change the deadline for filing a suit for judicial review of a DWC decision from 45 days to 60 days in order to give the claimant more time to locate an attorney willing to take the case to district court.

Senate Bill 229 would require the notices OIEC now sends to claimants describing their rights and obligations to also include a statement informing the claimant that he has the right to choose a doctor who is a doctor of medicine, osteopathic doctor, optometrist, dentist, podiatrist or chiropractor who is licensed and authorized to practice.

-  Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.

The case of New Hampshire Insurance Company v. Rodriguez, No. 08-15-00173-CV, recently decided by the El Paso Court of Appeals, may have a huge impact on workers’ compensation insurance carriers’ subrogation lien rights to plaintiffs’ recoveries in 3^rd party lawsuits. The case involved two potential employers, only one of which had workers’ compensation insurance which paid almost $2 million dollars in workers’ compensation benefits to the catastrophically injured worker. The worker sued both companies, and a jury apportioned the liability among the two companies and the worker. So far, so good. But then the trial judge found that the workers’ compensation insurance carrier’s right of subrogation against the total judgment had to be reduced by the dollar amount the jury attributed to the insured employer’s negligence. The court of appeals affirmed this methodology which, if the Texas Supreme Court allows this to stand as precedent, would mean that a carrier’s statutory lien interest would be reduced or extinguished altogether whenever a jury apportions negligence on an employer, even if the worker were to  be awarded 100% of his damages. The greatest impact will be in the employee leasing context where there are often two potential entities who could be the employer of the injured worker for purposes of a personal injury claim.

-  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.

With the demise of “bad faith” in workers’ compensation we are seeing a lot of attempts by plaintiff attorneys in 3^rd party lawsuits to try to work-around the exclusive remedy defense in order to hold an employer vicariously liable for damages. The core issue is always whether an individual was an employee or an independent contractor of a company at the time of the accident. Many times there will be a contract between an individual and a company where both agree that the individual is not an employee. It seems like this would be enough, but the Houston Court of Appeals recently decided that even where there is a clear agreement between the parties, there must still be an analysis of evidence regarding who has the right to control the details of the individual's work. Because this is a fact question, even a clear agreement cannot be the basis of a summary judgment. Stevenson v. Waste Management of Texas, No. 14-17-00433-CV, 02/21/19. 

-  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.

Karissa Coleman thought she was clever enough as an insurance agent to teach herself how to code medical bills for cancer treatment. Ms. Coleman created fake medical bills and fake medical records and then submitted fake claims for payment for out of pocket medical expenses not covered by medical insurance.  As “treatment” for her fakery, Ms Coleman got a real sentence: 10 years of probation and a requirement to perform 100 hours of community service.  Plus, she must pay back over $300,000.  We wonder whether she still has her ill-gotten gains so that she can actually make restitution.  The lesson here is that the more complex a system, the easier it is for bad actors to fly under the radar.  It costs us all.

-  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP.

Jennifer Kocanowski, a member of the Finderne Fire Department in the Township of Bridgewater, was injured in March 2015 while carrying equipment in response to a multi-alarm fire.  She fractured her fibula, tore ligaments in her ankle, and injured her back.

Prior to the injury, Kocanowski had not worked for over a year.  She had previously worked in 2013 as a nanny and a home health aide but took a six month leave from volunteering to care for her ill mother after her father’s death.  She returned to volunteer firefighting in July 2014.  However, she did not resume her prior outside employment. Her injury left her with permanent partial impairment.

The issue presented in this case was whether the Township owed Kocanowski temporary disability benefits following her injury in March 2015.  Kocanowski argued that she was entitled to temporary disability benefits based on the maximum rate set forth in N.J.S.A. 34:15-75, the provision dealing with rates for volunteer firefighters and EMTs. The Township argued that she was not entitled to temporary disability benefits because she had no lost wage to replace.  The Judge of Compensation and the Appellate Division both held that Kocanowski was not entitled to temporary disability benefits at all since she had not worked in over a year prior to her injury and had no offer of employment.

The New Jersey Supreme Court issued its decision on February 19, 2019.  The decision focused on the legislative intent to encourage volunteerism in passing N.J.S.A. 34:15-75.  This statute reads:

“Compensation for injury and death, either or both, of any volunteer fireman . . . (or) emergency management volunteer doing emergency management service . . . shall:

1.      Be based upon a weekly salary or compensation conclusively presumed to be received by such person in an amount sufficient to entitle him (or her) or, in the event of his (or her) death, his (or her) dependents, to receive the maximum compensation by this chapter authorized. . .”

The Supreme Court reversed the decision of the Appellate Division:  “As such, we find N.J.S.A. 34:15-75 authorizes all volunteer firefighters injured in the course of performing their duties to receive the maximum compensation permitted, regardless of their outside employment status at the time of the injury.”

The Court rejected the argument of the defense that all claims for lost wages must meet the test set forth in N.J.S.A. 34:15-38.  Defense argued that the words “by this chapter authorized” at the end of N.J.S.A. 34:15-75 refers to the entire workers’ compensation statute.  The provision dealing with temporary disability benefits is N.J.S.A. 34:15-38.  That section requires temporary disability benefits be paid from the day the employee is first unable to work due to the accident up to the first working day that the employee is able to resume work.  Defense suggested that this petitioner could not meet the test in N.J.S.A 34:15-38 because she had no work.

The Court responded by pointing out the prior to the passage of N.J.S.A. 34:15-75 in 1952, volunteer firefighters who were unemployed were entitled to temporary disability benefits even though N.J.S.A. 34:15-38 existed.  The rules for all other employees were not applied to volunteers.  In essence, the Court ruled that the New Jersey Legislature clearly never intended statutory volunteers to be subject to the law that applies to all other employees in New Jersey.  The reason for this exemption was to encourage volunteerism.

The Court’s decision failed to address one important question raised in oral argument, namely whether this ruling would mean that an 18-year-old high school volunteer firefighter injured in 2019 with no outside employment would be entitled to $921 per week while receiving authorized treatment and attending full-time high school classes.  The decision in Kocanowski suggests that this high school volunteer must be paid $921 per week while actively treating until reaching maximal medical improvement, notwithstanding the obvious windfall to the student and the cost to the municipality.

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

The idiopathic defense is not an easy one for employers to prevail on in New Jersey.  The basic concept is that the injury is not a result of any particular work effort and could happen anywhere, such as walking along a work corridor and suddenly feeling pain in one’s knee without falling or tripping.  But if work circumstances make the injury more likely, the defense is not available.  That was the holding in Quiles v. County of Warren, A-3938-17T3 (App. Div. February 13, 2019).

Officer James Quiles worked as a corrections officer for the County of Warren.  On March 14, 2014, he was climbing stairs at the County corrections facility to perform an inmate count when he felt a “pop and sharp pain” in his left knee. The County physician sent petitioner to an orthopedist following the incident, but the county denied the case.  So petitioner made an appointment with his own personal physician, Dr. Frank Capecci, who examined petitioner’s knee in April 2014.  Two days after seeing Dr. Capecci, petitioner went to the ER at Saint Clare’s Hospital with knee pain.  There was an entry in the record to the effect that petitioner had been running approximately 100 yards a few days earlier and suffered knee pain.

Petitioner continued to work for months, but in the Fall of 2014, Dr. Capecci recommended arthroscopic surgery to repair a left knee meniscal tear.  Three months later Dr. Capecci reconstructed petitioner’s ACL due to an incomplete ACL tear.

Petitioner filed a motion for medical and temporary disability benefits.  A video was shown at trial exhibiting petitioner climbing metal stairs while wearing heavy equipment and combat boots.  The equipment weighed about 25 pounds. Petitioner denied that he ever told the hospital that he had been running 100 yards.  Dr. Capecci also testified at trial, stating that in his view it was the stair climbing that caused the knee pathology.

The County’s medical expert, Dr. Richard Rosa, testified that there was no clear link between a torn ACL and just walking up steps.  There was some evidence that petitioner had complained of knee pain in 2008, but there was no evidence of any significant treatment.

The Judge of Compensation ruled in favor of petitioner on the ground that petitioner’s job required him to climb stairs while wearing 25 pounds of equipment.  As such he was performing a task that was stressful to his knees.  Further, the Judge did not credit the random entry in April 2014 to the effect that petitioner had been running 100 yards.  The Judge awarded medical treatment and temporary disability benefits to petitioner.  The County then appealed.

The Appellate Division noted that when an injury is due to a personal risk, such an injury is not compensable because there is no connection with employment.  Rather, it is idiopathic and not related to work.  The Court agreed with the Judge of Compensation that a key distinguishing feature in this case was that petitioner was wearing 25 pounds of equipment, making it harder to climb steps.  The Court gave more weight to the opinion of the treating physician, Dr. Capecci, because he was more familiar with the case.  The Court further discounted the one reference to running 100 yards, noting that petitioner exercised and participated in recreational activities until the March 14, 2014 stair climbing incident.  Those facts indicated that petitioner did not have a pre-existing knee problem.

The case is interesting because it underscores what employers need to win idiopathic claims.  In this case, the employer was at a huge disadvantage to begin with because petitioner was wearing 25 pounds while climbing stairs.  This was not someone who was just walking up or down stairs in light clothing.  The 25 pounds of weight removed the case from being an event that could have occurred anywhere.  The County also could not produce solid evidence of preexisting disability in 2008.

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

What happens if an employer terminates the employment of a worker, who then has an accident before leaving the work premises?  Is there workers’ compensation coverage? Does it make a difference if the employee quits as opposed to being fired and then has the injury on premises while leaving?  Does the moment of job termination immediately sever workers’ compensation protection?

These are questions that were recently put to me by a claim professional.  A search of published cases in New Jersey since the 1979 Amendments yields no published case on point.  However, the answer is undoubtedly that coverage for workers’ compensation will continue, barring some deviation, until the employee leaves the work premises.

While workers’ compensation laws vary from state to state, there is one authority that courts in every state look to, namely Larson’s Workers’ Compensation Law.   This treatise written by Professor Arthur Larson suggests that the employee is covered for workers’ compensation purposes for a reasonable period of time while packing his or her belongings and leaving the work premises.  A slip and fall while exiting the work premises should therefore be compensable under most circumstances.

Professor Larson comments that injuries post job termination are actually quite common because employees are often extremely upset in the moments after termination, leading them to be inattentive or careless.  Many times employers are suspicious about such injuries, and employment counsel often recommend that someone in supervision accompany the injured worker who has been terminated until he or she leaves the premises.  This is certainly good advice for a number of reasons.

Professor Larson analogizes injuries post job termination to punching in or out before leaving the premises.  Case law in New Jersey provides that punching in and out of work is separate and distinct from shedding the protection of workers’ compensation coverage.  Punching in and out is important for purposes of payment.  But New Jersey cases make clear that one remains covered for purposes of workers’ compensation while being on the premises, whether the employee has not yet punched in or has already punched out of work.  The key is the location of the worker at the time of the accident.  Was the employee injured on premises owned or controlled by the employer? If yes, there is coverage, notwithstanding that the employee may not have punched in yet or has already punched out.

Similarly, an employee is covered for workers’ compensation purposes during on-premises lunches, even though having lunch itself is not a job requirement.  New Jersey law is unequivocal that injuries in company cafeterias are compensable.  The reasoning again is that New Jersey has a strong premises rule.  Work premises are equal:  sitting in a lunch room is the same as sitting at one’s desk for purposes of workers’ compensation coverage.

Are there exceptions to the rule noted above?  Professor Larson makes an interesting observation that an employee who has quit or who has been fired can sometimes lose coverage if he or she lingers for a lengthy period of time on the premises and begins, for example, to play cards with colleagues or drink alcohol.  Those activities would be deviations and would take the employee out of workers’ compensation coverage.  But if the delay in departure from the work premises is caused by the employee’s need to wait for employer transportation in a company vehicle, coverage would continue while the employee leaves in the company vehicle.

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