Category Archives: New Jersey

‘Odd Lot’ Thrown Out in Thomas v. Board of Education

Inability to speak English;
Low intelligence;
Lack of formal education;
Low job skill transferability;
Lack of training.
‘Odd Lot’ claims have one other prerequisite: before the ‘Odd Lot’ doctrine can be triggered, the claimant’s disability relative to the work accident must be at least 75% of total. That is to say, the physical disability must be significantly (and nearly totally) disabling by itself. This reduces the opportunity for fraud and abuse by litigants who would “trump up” their alleged ‘personal handicaps.’ Also, in a state with a large illiterate/non-English-speaking worker population (New Jersey released ‘official’ state figures last week admitting to at least 500,000 undocumented foreign nationals living and working in New Jersey) the potential for abuse of the ‘Odd Lot’ provision is present.
In a March 4, 2009 decision, the Appellate Court found that the petitioner in Thomas v. Newark Board of Education had no grounds to appeal based on the Judge’s refusal to apply the ‘Odd Lot’ doctrine and find him totally disabled. In Thomas, the claimant alleged that all of his prior work experience was in heavy manual labor jobs and that he lacked job skills.
The Comp Judge refused to listen to that argument, and found the claimant only 22.5% disabled, and so the ‘Odd Lot’ doctrine was not applied.

EEOC in Trouble

The ruling stems from a grievance filed in 2006 and involving overtime disputes going on for six years. Specifically, the EEOC routinely offered days off instead of issuing overtime. The EEOc stated that employees were ‘requested’ to take time off to ‘balance out’ overtime worked.
EEOC employee asserted that the ‘requests’ were really fiction and that after being pressured to work longer hours no additional pay was provided.
No word as of yet from the arbiter as to whether the EEOC is going to be fined. AN EEOC spokesman stated that the overtime practices were going to be ‘reviewed.’

"Emergency Contact Person" rule in effect – avoid fine

S-1916 now requires that “emergent” requests for medical treatment be heard within 10 days of the request being filed with the court. What classifies as an ‘emergent’ motion for medical and temporary benefits? One where a doctor states that a worker is in need of emergent medical care and that “delay in treatment will result in irreparable harm and damage.” The respondent will have five days to file an answer to such a motion and the matter will be listed for hearing “within five calendar days of the filing of an answer.” A penalty of $2,500 will be assessed for each employer or insurance carrier who fails to designate a ‘contact person’ for such motions.

Exposure to perfume held "not compensable" injury

In Sexton v. County of Cumberland, decided January 9, 2009, the Appellate Division upheld a denial of benefits from a Petitioner who alleged that her pre-existing respiratory illness (COPD) was aggravated by a co-worker spraying perfume into the air of the workplace. The workers’ compensation judge found that such aggravation was not compensable because it did not arise out of the employment but instead arose out of a “personal proclivity” of the petitioner. The Appellate Division reversed his conclusion, finding that such an aggravation was compensable under N.J.S.A. 34:15-7 because it did arise out of this employment.

The value of Surveillance Video in a bench trial

Of what value is video surveillance? The answer to that question is “as much value as the Judge places on it.”

Video surveillance is often relied upon by the defense in New Jersey Workers’ Compensation cases to either challenge credibility or to demonstrate that a claimant is not as disabled as he appears from his own testimony or his doctor’s examination. A recent case (Gross v. Neptune) has been relied upon by plaintiff’s attorneys to limit the introduction of videotape evidence in contested workers’ compensation trials in New Jersey.

In Lance v. City of Camden Police the claimant alleged a closed-head injury resulted in “post-concussion syndrome” leaving him unable to perform his duties as a Camden Police Officer. The claimant’s treating doctor, (Dr. Richard Sadwin) testified that although objective testing of the claimant (EEGs, MRIs, and CT Scans) was normal, based on psychological testing and clinical observation the claimant was unable to return to work as a Police Officer.

The City of Camden countered with the testimony of Dr. Dhiraj Panda who opined that the claimant had “no residual neurological’ impairment.

The case was tried.

On the last trial day, the respondent City of Camden introduced a video into evidence. The video was one hour long and showed the claimant installing an air-conditioner unit, driving a truck, operating a high-lift/boom lift, climbing a tree, and operating a backhoe, all while “totally disabled” according to his testifying doctor (Dr. Sadwin).

The Judge of Compensation viewed the video and then immediately read a pre-written decision, finding the claimant totally disabled due to the head injury. The videotape evidence was mentioned in the oral decision, but the Judge stated that the video “does not show any activity involving the use of the brain.”

The employer appealed the decision, arguing that the Judge of Compensation denied the City of Camden its due process rights by ignoring video-tape evidence and refusing read the employer’s trial brief.

The appellate court found that the Judge of Compensation handled the case “expeditiously” and should have reviewed the trial brief of the employer’s counsel. However, the appellate panel also stated that the failure of the Judge to read the brief was not a reversible error “clearly capable of producing an unjust result” (quoting R. 2:10-2). The Appellate court also found that the Judge’s reading of a decision that was written before the Judge ever saw the videotape evidence was acceptable because the Judge referred to the video in his oral decision and “simply did not find the video persuasive enough to negate the inference that [the claimant] was incapable of returning to work.”

In reviewing the Appellate decision, it is striking that the claimant was not cross-examined with the video evidence – that is, his testimony as to his working ability was not challenged by the video showing him clearly capable of operating heavy machinery and perform various types of work. The surveillance video in this case would have had impeachment value to attack the credibility of the claimant. In light of the fact that the medical diagnosis was based on subjective “observation” and psychological testing, a direct challenge to the credibility of the claimant may have been more fruitful in challenging the nature and degree of permanent disability in this case. Instead, defense counsel appears to have waited until all testimony was concluded before the video was introduced, which severely limits the impact of such evidence (for example, it could have been sued to cross-examine the petitioner’s testifying doctors, etc.).

Case: John J. Lance v. City of Camden Police Department, A-6606-06T3 (App. Div. decided October 17, 2008)(Judges Winkelstein & Fuentes, unpublished as of blog date).

Parental Immunity gets a boost

A New Jersey appeals court has upheld a no-cause verdict in a negligence suit against a woman whose child injured another child during backyard play while under her supervision. The Appellate Division, in Kane v. Hatch, said the trial judge correctly invoked the parental immunity doctrine, which gives parents a high degree of autonomy in making subjective decisions to carry out their duties and which applies to third-party suits. The defendant “neither placed the children at risk nor exposed them to a commonly inherent danger so as to fall outside the traditional realm of child rearing and therefore outside the protective mantle of the parental immunity doctrine,” the judges wrote. The defendant’s son was playing tee ball with a wooden bat with two girls, including the plaintiff’s daughter. The defendant was supervising from a porch seven feet away. Though the defendant warned the girls to stay away, the boy struck one of the girls with the bat above the eye, causing a scar. Her mother sued the defendant, alleging negligent supervision. The Appellate Division held that the trial court properly instructed the jury to weigh the defendant’s conduct against the willful and wanton standard of liability. Parental immunity “protects parents from having to defend against judgment that may be construed as poor or negligent, so long as it is an honest error of judgment that is not wanton or willful.” While parental immunity is typically invoked by a parent in a matter involving the injury of their own child, the court applied it here in the third-party context, providing what could be a useful defense for liability insurers, depending upon the circumstances.