Category Archives: New Jersey

"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.

Cancellation of Policy – Workers Comp Coverage

In Sroczynski v. John Milek, decided December 17, 2008 the NJ Supreme Court found that there can be no legally effective policy cancellation where a carrier fails to prove that it strictly complied with all of the requirements for canceling a workers’ compensation insurance policy. The NJ Legislature established clear and unambiguous requirements in the cancellation statute, which include the requirement that a carrier file with the Compensation Rating and Inspection Bureau the certified statement required in N.J.S.A. 34:15-81(b). However, the Court also held that only parties that have raised this particular filing issue can be granted relief from improper cancellations – past cancellations that were never challenged on this ground will stand because the policyholders waived their right to challenge them.

Defining 'Employment'

Who is a “volunteer” and who is an “employee”? The defense of “non-employment” is one of the few affirmative defenses left under the New Jersey Workers’ Compensation Act. This case explores the distinction between and ‘employee’ (whose injuries are compensable) and a ‘volunteer’ (for whom there is no workers’ compensation liability.)

The salient facts of the Flores v. Paragon case are as follows:

•Flores was an undocumented (illegal) worker who was employed by general contractor Bredbenner from April to November of each year. Bredbenner’s business was installing gutters.
•Returning to America after his usual winter stay in Mexico, Flores sought work with Bredbenner.
•Here the story conflicts: Bredbenner testified he had no gutter work for Flores, and instead offered to hire Flores to work at his hose, doing yard cleanup for two days. Pay was $100 per day. Flores testified that he was hiredin his usual capacity as ‘laborer’ without limitation or qualification on the amount or type of work to be done.
•Flores did do yard work for Bredbenner.
•After two days of yard work, Flores accompanied Bredbenner to a gutter worksite. According to Bredbenner, the gutter installation was for a ‘friend’ and the work was unpaid (although Bredbenner was reimbursed for materials).
•According to Bredbenner, Flores offered to help at the gutter installation job, and Bredbenner accepted the offer.
•Flores fell off the roof at the job site, breaking both arms, his nose, and one leg.

Bredbenner argued that Flores was a ‘volunteer’ at the time he fell of the roof – not an employee. Bredbenner argued that Flores ‘offered’ to help and there was no promise of payment for his help. The Judge of Compensation found that Flores was an employee of Bredbenner at the time of the accident. The Appellate Panel agreed.

The legal decision was based on the following factors:
1. Credibility. Basically, the trial judge found Flores more credible than Bredbenner.
2. The statutory definition of employee. N.J.S.A. 34:15-36 defines an employee as “a servant . . . who performs a service for financial consideration.”
3.The prior employment relationship. Flores was able to show a two-year history of working for Bredbenner.
4.The circumstances of the incident. Flores was transported to the work site by Bredbenner, used materials and tools provided by Bredbenner, and worked under the ‘direction and control’ of Bredbenner.

All of the judges acknowledged that the lack of a contract and the fact that Flores was a seasonal employee who had only been back in Bredbenner’s employ for two days complicated the decision.

Case: Flores v. Paragon Construction and Restoration, App. Div. A-1035-07T3, decided September 15, 2008 by Judges Payne and Alvarez. (Note: this blog entry discusses an ‘unpublished’ decision). Also note: I can’t find a copy of this decision online, either at the Rutgers Law Library or the Appellate Division’s page. If you would like a copy of this decision, please contact me directly – my office # is 973-622-3000.

Statute discussed: N.J.S.A. 34:15-36
NEW CASE: FLORES V. PARAGON CONSTRUCTION – DEFINING “EMPLOYMENT”
9/15/08
New Case – Employment – Who Is an ‘Employee’?

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