Category Archives: Workers Compensation

Employer not entitled to credit for workers' compensation payments when settling co-defendant is a public entity

In a case of first impression, the Appellate Division held that where a public entity settles with an injured plaintiff for an at-work injury, the plaintiff’s independent contractor-employer is not entitled to a credit for workers compensation payments in a subsequent indemnity suit by the public entity. In Serpa v. New Jersey Transit, a construction worker was severely injured while working on a train station owned by New Jersey Transit — a publicly owned concern. He received some $900,000 in workers’ compensation payments from his employer, the general contractor for the job. New Jersey Transit paid the plaintiff $1.5 million to settle a personal injury suit, wherein the employer was named as a third-party defendant on an indemnity claim. The employer’s attorney agreed on the record that the $1.5 million was a reasonable settlement. However, after being apportioned 85% of the fault at trial on the indemnity issue, the employer sought a credit for its workers compensation payments. The trial court declined the requested relief and the Appellate Division affirmed. The court held that N.J.S.A. 59:9-2(e) precludes reimbursement to an employer from a public entity tortfeasor. Rather, the public entity or public employee receives a credit for the workers compensation payments, if a judgment is entered. Thus, in a settlement, a public entity cannot reasonably be expected to pay full value for a claim, knowing that if the case goes to trial, it will receive a credit against the damage verdict for the workers’ compensation payments. This was not accounted for by the employer in consenting to the reasonableness of the settlement.

Ultimately, the lesson taught by Serpa for carriers with insureds who work with public entities is that the public entity’s right to a credit for workers compensation payments made to injured employees must be taken into account before conceding as to whether a settlement proposal is reasonable. In this case, counsel for the employer should have argued that a settlement of $600,000 was appropriate.

Appellate Decision – Greg Lois

The Appellate Division affirmed the trial court in ‘Ferrigno v. Tyco.’ Greg Lois co-wrote the Appellate Briefs (with Michael S. Miller, Esq., also of Tompkins McGuire). Decision is here (PDF).

Citation: Ferrigno v. Tyco International, Ltd., App. Div. A-3328-06T3 (Decided Aug. 15, 2008). Download decision (PDF).

Dependency benefits in New Jersey

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).

Trial practice – new case

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).

'Going-and-Coming' rule examined

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)