This article is the second in our series on New Jersey’s Second Injury Fund. The prior article provides an overview of the Fund. This article discusses best practices for litigating Second Injury Fund cases.
Neutralize the common “procedural” objections of the Second Injury Fund.
The Deputies defending the Second Injury Fund will start by reviewing the “Second Injury Fund Verified Petition” and the attendant medical proofs (usually, both sides’ medical expert reports). At the initial conference (while the case is pending as a Motion to Join the Fund) the Deputy will usually point out any deficiencies in the filing and request the information from the checklist (above). Before the initial conference with the Judge and Deputy Attorney representing the Second Injury Fund, counsel should make sure that all of the other information discussed in our checklist (above) is available.
Make sure the reports of party experts are current.
Make sure that the IME reports are up-to-date at the time of the conference with the Second Injury Fund. Unfortunately, total disability cases can take the most time to assemble properly, and it is common for the IME reports to have grown stale. Generally speaking, “stale” means more than two years old. See Allen v. Ebon Services Int’l, 237 N.J. Super. 132 (App. Div. 1989).
Rely on the facts.
Don’t allow speculation and surmise, especially on the part of the Fund, to prevail. One of the most common arguments raised by the Fund is that the claimant is “not totally disabled.” There is an alternative to trying that issue to conclusion: the court allows for “in camera” (off the record) interviews of the petitioner by the Deputy Attorney General as part of the pre-litigation fact-finding process. This can be especially useful if the petitioner is sympathetic and in-person observation and questioning will strengthen the argument that the petitioner is totally disabled. Because this is done “off the record”, it is a chance for all the parties to assess the petitioner’s credibility and disability without the possibility of a trial judgment impairing latitude in questioning.
Be prepared to demonstrate the claimant’s functional abilities for the time before the last accident.
The employer is in a unique position to assist the petitioner in obtaining Fund contribution because the claimant’s pre-last-injury status is in issue. By definition, at the time of last injury, all Second Injury Fund candidates are working. The fact that the claimant was working is not held against her: however, the nature of the work, the participation level of the claimant, and the claimant’s description of her pre-last-injury status will be crucial in determining if the Fund contributes.
If the petitioner’s last work for the employer was “light” or can be characterized as “sheltered”, the employer should be prepared to present proofs in this respect. If the claimant’s pre-existing disability was known, the employer should produce all documented evidence that the employer was aware of the prior limitations. For example, any pre-injury accommodations made to the employee’s work station, routine, hours, or job duties should be provided to the defense counsel.
The Order for Total Disability With Second Injury Fund.
At the conclusion of a case where the Second Injury Fund has either voluntarily agreed to contribute or where the Judge of Compensation has Ordered contribution, an Order for Total Disability will be entered. Due to the added complexity of the “takeover” of benefits at some point by the Fund, the Division has promulgated a special Order to be used in this situation.
