Inability to speak English;
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.
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.’
The facts of Campbel were founded on two slip-and-fall accidents in the parking lot of a surgery center. Under its lease, the surgery center agreed to name the landlord as an additional insured on its general liability policy, which it did. Under the lease, the landlord was required to maintain the parking lot, including snow removal. It was undisputed that the plaintiffs were both patients of the surgery center and were injured due to slipping on ice in the parking lot.
The Appellate Division reviewed four of its prior published opinions in this area, in an effort to determine whether the surgery center’s carrier was obligated to defend and indemnify the landlord. Ultimately, the court found that the plaintiffs’ activities “arose out of” the surgery center’s use of the premises, thereby bringing the landlord within the center’s policy. Quite frankly, this was not a surprising result, given the court’s prior decisions. However, the court went on review the two policy types and determined that the center’s insurance policy was not a “true” excess policy, but rather a “primary insurance policy with an excess insurance clause.” The court then examined the the “other insurance” clauses of both policies The tenant’s policy, issued by Lexington Insurance company, mandated that if other insurance applied to the loss, the other insurance must pay first. Thus, according to its terms, the tenant’s Lexington policy only provided excess coverage to additional insureds. An examination of the language of the landlord’s own Maryland Casualty policy revealed that it was to be excess over any other primary insurance providing coverage for damages arising out of premises for which the insured had been added as an additional insured. The Campbel court concluded that since by its terms the tenant’s policy only afforded the landlord excess coverage, there was no other primary insurance available. Therefore, the condition limiting the coverage of the landlord’s own policy was not met and that policy must provide primary coverage.
WHY IS THIS IMPORTANT? This decision can be viewed as a significant roadblock at efforts to tender landlord’s defenses to tenants and their insurers for fall-downs which arise out of a tenant’s use of the premises. Tompkins, McGuire, Wachenfeld & Barry, LLP routinely counsels both property owners and tenants, as well as their insurers, on matters of general liability and insurance coverage. We would be happy to discuss the facts of your particular case as they might be affected by this new decision.
This entry contributed by: Joseph K. Cobuzio and Jared P. DuVoisin
The 2009 edition of ‘New Jersey Workers’ Compensation Law for Adjusters and Risk Managers’ has been published. The introductory guide, now reaching 270 pages, includes a copy of the scheduled loss charts for 2009 and a new chapter on ‘Motions for Med & Temp’ and the new-for-2008 ‘Emergent Motion for Med & Temp.’ Authored by: Joseph K. Cobuzio and Greg Lois. Click here to request a complementary copy.
This means we can expect that already overtaxed Second Injury Fund lists to grow in size and for adjournment of “recently” filed cases to be more likely.
Tompkins McGuire continues to maintain Second Injury Fund lists in every vicinage. We are pleased to report that none of Tompkins’ Second Injury Fund lists are being cancelled or re-assigned.
As of March 3, 2009 the State of New Jersey ‘phased out’ half of the centralized computer system (the part maintained by the Department of Human Services) which tracks when a child-support payer is “behind” in their support obligations. Typically, when a case reaches settlement (either by section 20 or Order Approving Settlement) the court clerk will check the computer database to make sure that the claimant doesn’t owe past-due child support. If child support was owed, then the Order reflects that a certain portion of the settlement must be remitted to the appropriate county probation department to satisfy the support requirement.
Why are we reporting on this? Because it affects many claims: New Jersey workers’ compensation carriers made $3.5 Million in child support payments in 2008.
The State is phasing out half of the centralized computer system that the Workers’ Comp clerks have access to. Now, when the docket shows a child support arrearage, and the amount is in dispute, the petitioner’s attorney will have to resolve the dispute with the applicable county probation department.
A common dispute occurs when a claimant is due workers’ compensation benefits and a child support lien for past-due support has been placed on the court docket. The claimant (nearly always) asserts that “he paid that money, that is an old lien.” In the past, the Workers’ Comp clerk could directly access the child support ledger for that individual claimant – and the dispute could be resolved on the spot (and 99.9% of the time the claimant was behind in his payments and the docket was correct).
Now, the process will likely take longer, as claimant’s attorney will have to directly follow up with individual probation departments. The Administrative Office of the Courts will continue to maintain their child-support tracking system, but that system is notoriously out-of-date; in fact, the Office of the Courts’ “half” of the database could never be relied upon (by itself) for an accurate statement of current arrearages.
Expect claims with child-support liens to requires additional time to close, probably in the realm of several weeks.