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New Jersey Workers' Compensation Lawyer, John F. Renner, Esq.

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New Jersey Workers’ Compensation lawyers review whether an employee lawsuit against employer is prohibited by the Workers’ Compensation Act

The Plaintiff, while employed on a renovation project, sustained serious injuries when he fell from a scaffold.  A New Jersey work injury lawyer brought this action alleging that the improper construction of the scaffold and the failure to provide the injured worker with safety harnesses constituted intentional wrong.   The trial court, after consideration of the NJ work accident lawyer arguments, granted the motion of Frinzell Inc., Plaintiff’s employer, for summary judgment dismissing the claim against it.   In so doing, the court found that the employer’s conduct was not so plainly beyond the type of conduct the Legislature intended to immunize under the Workers’ Compensation Act.   The Superior Court, Appellate Division, affirmed the decision.   The Appellate Division also reversed the denial of the motion of defendant Sea Home Inc. for summary judgment because the credibility issues that the judge found created an issue of fact for the jury were insubstantial and irrelevant and the evidence was insufficient to allow the judge to conclude that Sea Home was a subcontractor of the project or that it owed any duty to plaintiff.

Legal Quote of the Week:

All men have equal rights to liberty, to their property, and to the protection of the laws.

Voltaire, Essay on Manners, 1756


 

N.J. Workers’ Compensation Lawyers determine whether workplace accident meets burden to overcome exclusivity bar in workers’ compensation

The trial court granted summary judgment dismissing plaintiff’s complaint against her employer for injuries suffered in a work related accident. The plaintiff appealed. Plaintiff’s job was pack cookies coming out of a machine, which sometimes got clogged from pieces of cookie breaking off. The plaintiff stuck her hand in the machine to clear it and severely injured her hand from the chopping motion of the machine. She claims there were no warnings nor was she ever told not to operate the machine in this manner. The machine contained a warning label indicating not to put your hands near the machine; however plaintiff claims this was put up after the accident. However, no other workers were ever injured prior to this accident. The trial judge found that plaintiff did not present sufficient evidence to overcome the intentional wrong exception to the workers’ compensation exclusivity bar. The appellate panel affirmed, finding that no error in the trial court’s conclusion that neither the context prong nor the conduct prong of the intentional wrong exception were met. The Panel noted that this is the type of workplace accident for which the Legislature intended to limit recovery to the remedies provided through the Workers’ Compensation Act.

Legal Quote of the Week:

The law that will work is merely the summing up in legislative form of the moral judgment that the community has already reached.

Woodrow Wilson, Address, December 20, 1915


 

New Jersey Workers’ Compensation Attorneys review whether carriers may

bring claims the injured party could not

 A New Jersey Workers’ Compensation recipient received workers’ compensation benefits through Atlantic County Municipal Joint Insurance Fund following a car accident that occurred when he was acting within the scope of his duties as a police officer. JIF, as the recipient’s subrogee, filed suit against defendant, the other driver, for reimbursement of the workers’ compensation benefits. Defendant’s insurance was subject to the verbal threshold. The appeals court affirmed the judgment in favor of the defendant because allowing the New Jersey workers’ compensation carriers to bring claims that could not be maintained by the injured driver would undercut the rationale of the Automobile Insurance Reduction Act.

Legal Quote of the Week:

We love justice greatly, and just men but little.

Joseph Roux, Meditations of a Parish Priest, 1886

 


 

Cruz v. Central Jersey Landscaping, Inc., 195 N.J. 33 (2008)

 The New Jersey Supreme Court considered four consolidated appeals that raised the question of whether the Legislature's 2004 amendment to the schedule of workers' compensation death benefits was intended to be applied retroactively. The claimant in each of the four cases was entitled to death benefits. At the time of the death of each claimant's decedent, the statute included a schedule for calculating the benefits payable, expressed as a percentage, that varied based upon the number of surviving dependents. The applicable range provided for benefits of: fifty percent of wages for one dependent; fifty-five percent of wages for two dependents; sixty percent of wages for three dependents; sixty-five percent of wages for four dependents; and seventy percent of wages for five or more dependents. In 2004, the Legislature amended the statute and replaced the tiered system of benefits with a flat rate of seventy percent of the decedent's wages, to be payable regardless of whether a deceased worker was survived by one or more dependents. The issue raised in each case was whether the claimants were entitled to benefits at the amended flat rate of seventy percent or only to the pre-amendment graduated-tier benefits based on the number of each decedent's dependents.

The four separate matters were consolidated for consideration in the Appellate Division, where a divided panel determined that the amendment to the Act was entitled to retroactive application. The New Jersey Supreme Court reversed. The court explained that retroactivity is only appropriate when it is expressed, when an amendment is curative, or when the expectations of the parties so warrant. According to the court, the record demonstrated that the Legislature neither expressly stated, nor implicitly made known, its intention to have the increased benefit levels apply retroactively. The court took the Legislature's direction that the amendment take effect immediately to mean that the increased benefit rates would apply to claims that would arise immediately after the effective date of the amendment. Further, the court stated that, in the absence of an unambiguous directive that the Legislature so intended, it could not interpret the amendment in an expansive fashion because to do so could result in all of the awards that have been entered in years past being reopened to permit an increase in benefits.


 

Morella v. Grand Union Co., 391 N.J. Super. 231 (App. Div. 2007)

In January 1991, petitioner Patricia Morella was injured while in the course and scope of her employment with Grand Union. In 1998, the Division of Workers’ Compensation entered an order approving settlement and held Grand Union liable for prescription costs and for future monthly prescription costs. Grand Union complied with an order compelling it to pay prescription costs until November 2003, when the workers’ compensation bond it received after its 2002 bankruptcy was exhausted. In January 2004, counsel for the employer was relieved, and the case was placed on the Division's list to be handled by the New Jersey Self-Insurers Guaranty Association. In April 2005, petitioner moved to compel payment of her prescription costs against the Association. The Association opposed the motion, asserting that the Division lacked jurisdiction to adjudicate the claim, and in the alternative, that an employee injured prior to the employer's bankruptcy was required by N.J.S.A. § 34:15-120.18a to file a proof of claim with the bankruptcy court as a condition precedent to receipt of compensation payments from the Association. Petitioner did not file a proof of claim because Grand Union’s attorney had informed her counsel that it was not necessary to file a proof of claim in the bankruptcy action. In July 2005, the compensation judge entered an order determining that the Association was required to pay for past and future prescription expenses relating to petitioner’s accident.

The Appellate Division affirmed. First, the court determined that the Division did have subject matter jurisdiction because N.J.S.A. § 34:15-49a permits a direct proceeding in the Division against the Association, which fills the shoes of the insolvent employer. Second, the court applied basic concepts of statutory construction to conclude that the qualifying clause in N.J.S.A. § 34:15-120.18a, “if the employee makes timely claim for those payments,” applies only to the second class of claimants defined in the statute, those injured after the employer’s insolvency. Thus, the court concluded that the statute creates two classes of claimants, those injured before and those injured after the employer's insolvency, and that an employee whose injury occurs before the employer's insolvency is not required to file a proof of claim in the employer's bankruptcy proceeding before qualifying for compensation payments. Moreover, the court declared that, under the facts presented, it would be unjust to deny petitioner the right to receive compensation payments because Grand Union’s own attorney advised petitioner that she did not have to file a proof of claim in the bankruptcy proceeding.

This opinion was affirmed by New Jersey Supreme Court in Morella v. Grand Union Co., 193 N.J. 350 (2008), which simply stat that the judgment of the Appellate Division was affirmed “substantially for the reasons expressed in Judge Gilroy’s opinion of the Appellate Division.”


 

NEW JERSEY WORK INJURY LAWYERS CONSIDER COURT OF APPEALS DECSION ON THE REPAYMENT OF LIENS FROM AN AWARD OF COMPENSTION ISSUED BY A JUDGE OF COMPENSATION IN THE STATE OF NEW JERSEY

 Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572 (App. Div. 2008)

             Plaintiff suffered a knee injury at her workplace. After being initially diagnosed as having a minor knee sprain and discharged, she returned to the hospital's emergency room in extreme pain and was diagnosed with a serious infection which resulted in the amputation of both legs, her right arm, and four fingers of her left hand. Plaintiff filed a workers' compensation claim, which resulted in an award of $400,000 in permanent and total disability with an expectation of additional benefits for the rest of her life. She later filed a medical malpractice action against the hospital and others. The hospital settled for $125,000 and the workers' compensation statutory lien, N.J.S.A. 34:15-40, held by appellant Workers' Compensation Security Fund, attached to that recovery. Plaintiff went to trial against the remaining defendants, but before the jury could render its verdict, plaintiff and defendant Richard D. Shih entered into what they have referred to as a “verdict risk limiting” agreement. The agreement guaranteed-regardless of the jury's verdict-that plaintiff would receive no less than $100,000 and no more than $3,500,000. The jury rendered a “no cause” verdict, and, based on her agreement with defendant Shih, plaintiff received $100,000.

            Plaintiff thereafter filed a motion in this action, seeking a declaration that the fund's statutory lien did not attach to the $100,000 payment. The fund's statutory lien attaches by law to any “sum in release or in judgment on account of [a third person's] liability to” the employee. The trial judge concluded that the payment did not meet this statutory definition and granted plaintiff's motion, but the Appellate Division disagreed and reversed. The court the question to be determined is whether the agreement to make a payment was made in contemplation of and while the alleged tortfeasor was in the course of responding to or defending against a claim brought by the employee. Accordingly, the lien attaches as well to an alleged tortfeasor's promise to pay in order to avoid the consequences of a verdict yet to be delivered, as here. Defendant Shih's $100,000 payment to plaintiff was a settlement and was offered and accepted as the means for resolving the parties' differences, subject only to the rendering of a jury verdict for the sole purpose of filling in the agreement's gaps by defining the amount Shih had agreed to pay. This constituted a settlement of the type encompassed by N.J.S.A. 34:15-40 because it was generated by, and made in contemplation of, plaintiff's suit against Shih and was the consideration she agreed to accept in order to resolve that litigation. As a result, the court concluded that the payment to the employee of the “low” defined by a high/low agreement, which agreement preceded a decision or verdict in favor of an alleged tortfeasor, is subject to the employer's statutory lien.


Alvarado v. J&J Snack Foods Corp., 397 N.J. Super. 418 (App. Div. 2008)

Rafael Alvarado, an employee of J&J Snack Foods Corp., died on April 12, 2005 from an injury he sustained at work. J&J deemed Rafael's death compensable and acknowledged its obligation to provide the 70% dependent benefit rate to those persons who were Rafael's dependents. Though there was disagreement as to the proper allocation of benefits between Rafael’s three daughters, J&J disbursed dependency benefits on October 6 in equal shares to the three daughters “pending a court order or agreement as between parties.” Because J&J made an offer to pay full dependency benefits within 26 weeks of death, the workers’ compensation judge concluded that the employer was entitled to the limitation on an attorney-fee award set forth in N.J. Stat. Ann. § 34:15-64(c), and concluded that he was limited to awarding $50 in attorney fees without regard to the amount of work done because J&J offered to pay full benefits.

N.J. Stat. Ann. § 34:15-64(c) provides that, when compensation has been offered within 26 weeks of an employee’s death, the attorney fee “shall be based upon only that part of the judgment or award in excess of the amount of compensation, theretofore offered.” It further states that,“[w]hen the amount of the judgment, or when that part of the judgment or award in excess of compensation, offered . . . is less than $200, an attorney fee may be allowed not in excess of $50.” In summarizing this body of law for the benefit of workers’ compensation judges, the Appellate Division explained that “the offer must be made (a) at a reasonable time after notice of injury and extent of disability, (b) prior to any hearing and (c) prior to the expiration of the applicable twenty-six-week period. Twenty-six weeks is not a per se reasonable time; it is only a cut-off. A reasonable time might be much less.” The court concluded that it was “readily apparent” that the compensation judge did not consider all of the relevant facts of the case in order to determine whether the twenty-five-week delay between the date of death and the payment of benefits was reasonable. As a consequence, the court reversed the order allowing a $50 fee and remanded the matter to the workers’ compensation judge for reconsideration. If the judge still determines that the respondent is entitled to the statutorily reduced fee, he must then reconsider the award of only $50. In determining the reasonable amount of an attorney fee for Aaliyah's attorney, the compensation judge must measure the difference between the amount of dependency benefits paid voluntarily to Aaliyah, not all three daughters, and the amount of dependency benefits awarded to Aaliyah, not all three daughters, under the settlement.

Thus, the court held that where competing claims for dependency benefits arise, “the reasonable allowance for attorney fee shall be based upon only that part of the judgment or award [in favor of each petitioner] in excess of the amount of compensation, theretofore offered, tendered in good faith or paid [to that petitioner]”. N.J. Stat. Ann. § 34:15-64(c). In no case shall the award be limited to $50 except when the amount “offered, tendered in good faith or paid” to the petitioner is equal to or greater than the amount awarded to that petitioner.


Acikgoz v. New Jersey Turnpike Authority, 398 N.J. Super. 79 (App. Div. 2008)

            On May 4, 2001, petitioner Yakup Acikgoz was in his car on his way home after working the morning shift at the New Jersey Turnpike Authority’s maintenance yard. John Lowden, also an employee of the Turnpike Authority who had spent most of that day on “union release time,” was on his way to the Turnpike Authority’s facility when he collided with petitioner on an access road near the facility. Petitioner filed both a tort action against Lowden in the Law Division and a claim petition against the Turnpike Authority in the Division of Workers' Compensation. The Law Division transferred jurisdiction to the Division of Workers’ Compensation, where the judge determined that neither individual was in the course of his employment at the time of the accident, that therefore N.J.S.A. § 34:15-8 did not apply, and that petitioner's accident was not compensable. The judge dismissed the claim petition and relinquished jurisdiction of the tort action to the Law Division. Lowden argues that the compensation judge erred in determining that neither he nor petitioner was in the course of his employment at the time of the accident.

N.J.S.A. § 34:15-8 provides: “If an injury ... is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed…” N.J.S.A. § 34:15-36, commonly referred to as the premises rule, explains that employment commences “when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment, excluding areas not under the control of the employer.” Generally, an employee who is not physically on the employer's premises is not in the course of the employment. “The pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred?” For purposes of the Act, control exists “when the employer owns, maintains, or has exclusive use of the property.”

The Court of Appeals accepted the compensation judge’s determination that neither individual was in the course of in his employment at the time of the accident and thus affirmed his ruling that § 34:15-8 did not apply. The court concluded that the Transit Authority could not be considered to control the overpass because it was not used exclusively by employees and the employees were not required to use that overpass to reach the facility. Furthermore, it would be impractical to conclude that the mere fact that an Authority employee was involved in an accident on a road owned and maintained by the Authority could serve as a sufficient basis to conclude the accident occurred in the course of petitioner's employment because the Authority owns and maintains the entire New Jersey turnpike system. Therefore, the bar contained in § 34:15-8 did not apply and petitioner could proceed with his tort action against Lowden.


NEW JERSEY WORK ACCIDENT LAWYERS CONSIDER MEDICAL BENEFITS PROVISION OF THE NEW JERSEY WORKERS COMPENSATION ACT TO PROVIDE NECESSARY AND REASONABLE MEDICAL TREATMENT FOR INJURED EMPLOYEES COVERED BY THE ACT.

According to N.J.S.A. 34:15-15: “an employer shall furnish such medical, surgical and other treatment and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible.”   As such, New Jersey work injury employees who cannot medically have the reduced function of the member or organ restored are entitled to permanency benefits. 

According to the New Jersey statute, if the employer refuses or neglects to provide medical treatment, the work injury employee may secure such treatment and the employer will become liable for the payment, provided that the employee requested the employer to furnish the treatment and the employer refused or neglected to do so, or, unless notification is impossible due to the nature of the injury or the circumstances where so peculiar as to justify.  

Case law interpreting the statute has held that as long as there is competent medical evidence and the treatment is reasonably necessary to cure or relieve the effects of the injury, there may be the necessity for continuing medical treatment if the function of the member or organ is thereby increased. 


 

Fackelman v. Lac d’Amiante du Quebec, 398 N.J. Super. 474 (App. Div. 2008)

Holding: A workers’ compensation insurer that performs industrial hygiene studies for a plaintiff’s employer owes no duty to educate and warn employees of any danger.

            Plaintiff commenced an action against Aetna, among others, after discovering in 2002 that he had asbestosis as a result of being exposed to asbestos while employed at the Berlin facility of Owens Corning Fiberglas Corporation. Aetna, as a workers’ compensation insurer, performed various air sample surveys, industrial hygiene studies, and special hazard studies at the Berlin plant and met with Owens Corning representatives to review the results and to prompt Owens Corning to reduce high exposure levels and contain dust in the plant. Aetna did not inform individual employees of the test results. Plaintiff argued that Aetna was liable to him because it undertook to perform industrial hygiene surveys which were necessary for the protection of employees and it failed to warn the employees of elevated dust levels or to educate them on measures to avoid or to minimize the danger caused by the substances to which they were exposed. The trial court granted summary judgment for Aetna and plaintiff appealed.

The Appellate Division affirmed.  New Jersey work injury lawyers review the holding that an insurer who performs industrial hygiene studies for an employer does not have a duty to educate and warn employees of any danger.  New Jersey workers compensation lawyers further review the court’s explanation that the precise issue on appeal had been raised in other cases and had been decided in favor of the insurer in each instance. There was no basis to depart from that well-settled New Jersey law, which was consistent with Restatement (Second) of Torts § 324A, governing liability of third parties for negligent performance of an undertaking. That section states that one who undertakes to render services “which he should recognize as necessary for the protection of a third person” is liable to the third person for harm “resulting from his failure to exercise reasonable care” if (a) that failure increases the risk of such harm, (b) “he has undertaken to perform a duty owed by the other to the third person,” or (c) “the harm is suffered because of reliance of the other or the third person upon the undertaking.” In affirming, NJ work injury attorney John F. Renner understands that the court rejected plaintiff’s argument that liability should have been imposed on Aetna because it assumed the duty of the employer to provide a safe place to work, as well as the argument that plaintiff and other employees reasonably relied on Aetna to communicate to them the known dangers in their work environment. Consistent with New Jersey law, the court held that the factual record provided no basis for recovery by plaintiff against Aetna.

The court similarly found no validity to either plaintiff’s argument that ordinary principles of tort liability supported the recognition of a duty by Aetna to reduce the risks of harm at the Berlin facility and to warn the employees directly of those risks or his argument that he was a third-party beneficiary of the contractual relationship between Aetna and his employer.

Call on New Jersey lawyer, John F. Renner, an experienced New Jersey Workers Compensation lawyer.


Quereshi v. Cintas Corp., Docket Number A-1848-08T3, Appellate Division.
Opinion by Cuff, P.J.A.D. Decided and approved for publication May 28, 2010.
On appeal from the New Jersey Department of Labor, Division of Workers’ Compensation.
Claim Petition No. 2002-27659. DDS No. 39-2-8052.

Held: An award of attorneys’ fees is mandatory under N.J.S.A. § 34:15-28.1 when an employer unreasonably or negligently delays or refuses to pay temporary disability benefits. The judge of compensation is not limited by the statutory formula in N.J.S.A. § 34:15-64 governing fee awards following an award of benefits. Rather, the fee award should reflect the actual cost to obtain the improperly withheld benefits.

Petitioner Kubra Quereshi filed a motion for temporary disability benefits and medical benefits. The motion was granted and the judge of compensation, in addition to ordering payment of temporary disability benefits to petition, ordered respondent employer to pay past due benefits to petitioner, to reimburse petitioner for out-of-pocket medical expenses, and to pay ongoing temporary disability benefits, medical benefits, and attorneys’ fees. When the employer failed to timely pay the temporary benefits, petitioner moved pursuant to N.J.S.A. § 34:15-28.1 for the imposition of a penalty and other relief. The judge of compensation found that respondent had paid the benefits more than thirty days after entry of his order with no excuse for the late payment. He assessed a penalty of 25% of the temporary benefits owed to petitioner, but did not award attorneys’ fees. Petitioner appealed, arguing that the award of attorneys’ fees is mandatory, not discretionary as argued by respondent.

            Section 28.1 provides that an employer “shall be liable to the petitioner for an additional amount of 25% of the amounts then due plus any reasonable legal fees incurred by the petitioner as a result of and in relation to such delays or refusals.” The court explained that use of the words “shall,” which denotes action that is mandatory, and “plus” demonstrated that, when a petitioner resorts to the remedy provided by Section 28.1 to address delinquent payment of temporary benefits and when a judge of compensation finds that the payment was unreasonably or negligently withheld, the judge must award both the statutory penalty and a reasonable legal fee. The court further explained that Section 28.1 departs from the language employed in Section 64 in that no cap is referenced in Section 28.1 and that the language of Section 28.1 suggests that reasonableness is bounded by the causal relation of the need to incur an attorneys’ fee to obtain previously awarded and expected benefits and the work required to obtain those benefits. Thus, the remedy should include a fee award that reflects the actual cost to obtain the improperly withheld benefits.

Call on New Jersey lawyer, John F. Renner, an experienced New Jersey Workers Compensation lawyer.


New Jersey Work Injury lawyer, John F. Renner provides experienced, knowledgeable and aggressive legal counsel in pursuit of a just and equitable award of compensation. There is no attorney fee unless an award of compensation is recovered for you.

"The person who has ... been injured and who, because of his injury, is unable to work, and has a large family to support, and has no money to engage a lawyer, would be at the mercy of the person who disabled him because, being in a superior economic position, the injuring person could force on his victim, desperately in need of money to keep the candle of life burning in himself and his dependent ones, a wholly unconscionably meager sum in settlement, or even refuse to pay him anything at all. Any society, and especially a democratic one, worthy of respect in the spectrum of civilization, should never tolerate such a victimization of the weak by the mighty."
Richette v. Solomon, 187 A.2d 910, 919 (Pa.1963)

Michael A. Musmanno, Nuremberg Trial Judge

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