On July 16, 2004 Alfonso Estrada Moron (A.K.A. Eduardo Zambrano) was shot and killed in a hold-up while working for Quik Chek as an assistant manager.
There was no dispute that the decedent died “in the course of employment” and that his weekly wages were sufficient to give rise to a dependency rate of $227.98 per week.
The dispute arose as to whether or not the claimant’s mother, who lived in Peru was “solely dependent” on the decedent as she claimed. If she could prove dependency, she would received $227.98 per week until she died. The claimant testified that the decedent sent her $600 per month for her support, plus $600 for her birthday and $1,000 at Christmas.
The claimant was unable to provide any evidence that she had ever received any money of any kind from the decedent. It turns out that all the monies were transferred to her in cash through a “middleman” and no records could be produced. Regardless of the lack of proof, the Judge of Compensation gave full credence to the claims of the mother, and awarded her full dependency benefits.
The employer appealed, arguing that the claimant failed to prove she was the claimant’s mother. The Appellate Court found that the Judge of Compensation was correct in awarding lifetime benefits and that counsel for the employer waived the issue of parentage by failing to raise it at trial.
Lesson for adjusters: choose counsel wisely!
Case: Estrada v. Quik Chek, A-1927-07T2 (App. Div. decided July 3 2008)(Judges Lisa & Lihotz, unpublished as of blog date).
Many Second Injury Fund Cases end with a Judge of Compensation ruling that the Fund is dismissed from the case. This usually happens when the Judge determines that (a) the claimant is not totally disabled, or (b) the claimant was totally disabled as a result of the last accident alone, or (c) the claimant’s pre-existing conditions were not disabling.
In the case of Vassilatos v. Mercer Wrecking Recycling Corporation, decided July 2, 2008, the Appellate Judges (Judges Fuentes and Grall) reviewed whether the workers’ compensation judge made specific-enough findings as to whether two intervening accidents “caused or contributed” to the claimant’s permanent disability.
The claimant in Vassilatos suffered injury to his right ankle and leg. He received medical treatment and was released from treatment approximately one year after the accident. The claimant then suffered a number of subsequent accidents – including claims for falling due to the “bad leg giving out.” The claimant underwent multiple surgical procedures to both knees and both shoulders and treatment to his cervical, thoracic, and lumbar spine regions.
The Judge of Compensation decided that the claimant was totally disabled and ordered total disability compensation be paid by the employer at the time of the original accident. The Judge of Compensation acknowledged that the petitioner had sustained subsequent accidents, and the injuries ( for which the majority of treatment occurred after) but failed to parse out exactly what degree of disability was related to the subsequent incidents (Id. at page 13). The case was sent back to the Judge of Compensation by the Appellate Court for the Comp Judge to “articulate, with particularity, what effect the 1999 and 2000 accidents had on the petitioner’s physical and psychiatric well-being.”
The remand of this case will allow the Respondent employer to argue that the petitioner’s condition worsened by an intervening accident which was not “directly connected in a physical chain of physical causation with the compensable injury.” In Vassilatos the claimant re-injured himself slipping on “wet stairs” in his apartment building (for which he maintained a civil action).
Case: Vassilatos v. Mercer Wrecking Recycling Corporation, A-4952-4878-06T3 (App. Div. decided July 2 2008)(Judges Fuentes & Grall, unpublished as of blog date).
The Appellate Court reversed the decision of the workers’ compensation judge, finding the “travel-time” exception to the going-and-coming rule does not apply where a salaried employee is reimbursed for gas, tolls, and wear and tear on his vehicle, but was not paid wages for the time of his commute to and from work.
In Scott v. Foodarama, 398 N.J. Super. 441 (App. Div. 2008), the Appellate Division found that the claimant was merely driving to work when the accident happened, and was barred from receiving compensation for injuries sustained on his commute. In other words, the claimant was engaged in his normal commute. The fact that his commuting expenses were paid by the employer did not make the claim fall “within the course of” his employment.
What makes this case notable is that the claimant was actually reimbursed for his commuting expenses by the employer. (Decided February 27, 2008, link to full decision: http://lawlibrary.rutgers.edu/courts/appellate/a3936-06.opn.html)
In a case currently being considered for publication, Janela v. Roman Asphalt Co., the issue of dual employment arose in the context of a government construction contract. The employer/paving company, Raebeck Construction won a contract for paving at Newark Liberty International Airport, which called for it to exercise direct control over the project and to certify that it did not share staff with any other company. On the date of the accident, an employee was struck in the head by a compressor and killed. His estate was paid dependency benefits by Raebeck. However, the estate also brought suit against another company, Roman, who actually did the paving work. It was revealed that contrary to the contract, Raebeck had no role in the job and essentially leased all workers from Roman. Raebeck did actually pay all of the workers, however. Roman moved for summary judgment on the exclusivity provisions of the Workers Compensation Act. The Appellate Division upheld the dismissal of Roman using a five part fact sensitive test focusing on the control exercised over the employees, to determine whether Roman was also an employer. It found that even though Raebeck violated specific government contract provisions to avoid this precise employment situation, bidding qualifications and contract requirements did not negate the legal rules governing workers’ compensation.
When analyzing a new claim involving dual employment, an immediate and comprehensive investigation of the employment relationship is essential. Obtaining documentation such as contracts, job descriptions, employment handbooks, payroll records, and even incorporation documents is an essential strategy in evaluating the claim. Also, early identification and interviews of the owners, managers and contractors can further assist in determining the degree of control each entity had over the injured worker.
On March 14, 2007, the New Jersey Appellate Division decided Valcarel v. FSA Management, A-40001-05T2 (Mar. 14, 2007)(Not Approved for Publication). The issue at bar was whether or not the claimant was “acting within the scope of his employment” when the accident occurred. The Appellate Division agreed with the Judge of Compensation (Judge Joel Gottlieb, New Brunswick) that the petitioner was engaged “on personal business when he was involved in the accident in question” and that no compensation would be payable.
The facts in Valcarcel are important to understanding the judges’ decision.
The claimant in Valcarcel was employed by FSA managing a residential apartment complex in Bridgewater. The petitioner was supplied with the use of a company vehicle (a Ford pickup truck). Occasionally the claimant would perform maintenance at other properties owned and operated by FSA.
The claimant also operated a personal business: home remodeling, which he pursued after normal work hours. FSA did not allow the claimant to use the Ford truck for his personal business.
On the date of accident the claimant was instructed to travel to Highland Park on behalf of his employer. Instead of driving straight to Highland Park, the claimant diverted his route and stopped at a private job site in Plainfield where he had been remodeling a private residence. After leaving that job site, the petitioner was involved in a motor vehicle accident in Plainfield.
Judge Gottlieb dismissed the claim petition, finding that the claimant had embarked on a personal errand. The petitioner argued that at the time of the accident, he was headed to Highland Park (as he had been originally instructed by his employer). The Appellate Division found this argument unpersuasive and upheld Judge Gottlieb, noting “that surely is not a dispositve fact, for it would logically signify that Valcarcel would likewise be entitled to coverage if, say, he had traveled several hours away for personal business to Cape May or to Connecticut before heading to Highland Park.”