Sitting is not an Occupational Hazard.

More than three years ago, I wrote with vitriol about a New Jersey appellate decision finding that the “prolonged sitting” of a telecommuting office worker could be considered an occupational injury and justified an award of death benefits. I found the decision deplorable and called it “emblematic of the lengths courts will go to find questionable claims compensable.”

Following the decision in 2011, petitioner’s law firms advertised to prospective claimants that a whole number of maladies, including “risk of heart disease and muscle degeneration . . . herniated discs and strained necks” could result from merely sitting at work and were compensable. In fact, the lawyers who represented Renner put a link to an infographic on their website, detailing the various body parts/claims that sedentary workers could claim were related their employment. Other lawyers asked prospective clients “Do you spend a lot of time at your desk?” implying that this meant they could have some type of claim for compensation.

Three years later, on July 30, 2014 the New Jersey Supreme Court agreed with me that the trial judge and Appellate courts had applied the wrong standard and that “sitting” is not injurious. Although there was no dissent in the appellate division decision, New Jersey’s highest court took up the appeal of this case and soundly reversed the decision.

Background of Renner.

My 2011 article on Renner outlines the case and provided a number of reasons for it to be reversed.

Renner was a telecommuter who claimed that hours of sitting at home in front of a computer on a specific day contributed to the development of a deep vein thrombosis which ultimately killed her. Although Renner’s claims were that she was “working an all-nighter” in the hours leading up to her death, no real evidence of what she was actually doing was produced. The petitioner produced only a handful of emails scattered over a ten-hour period to support her claim that she was even working. The main reason this case was found in favor of the petitioner was that both the trial judge, defense attorney, and appellate courts applied the wrong standard in assessing compensability. (Some defense attorneys even published articles trying to explain how this decision made sense, advising their clients to be “cautioned that [ ] based on this case, they can now be penalized if the work activity is more than home activities or if the work activity is less than the activity at home.”)

New Jersey Workers’ Compensation Act sets forth a higher burden for a claimant to meet in cases involving cardiovascular injury (such as pulmonary embolism). To prevail in a cardiovascular claim, the claimant must show that that

the injury or death was produced by the work effort or strain involving a substantial condition, event or happening in excess of the wear and tear of the claimant’s daily living and in reasonable medical probability caused in a material degree the cardiovascular or cerebral vascular injury or death resulting therefrom. See N.J.S.A. 34:15-7.2.

In plain English, this means that the claimant has the burden to show, by a preponderance of the evidence, that the work effort which caused the condition was somehow more strenuous than the activities of daily living. This is because the drafters of the statute envisioned that the “cardiovascular” events brought before the Division of Worker’s Compensation would be heart attacks and strokes – which can be brought on by stress and strain.

Instead, the lower courts applied a clearly erroneous standard – whether Cathleen’s lack of movement at work was more severe than her lack of movement in her daily living. This is essentially the “reverse” of the excess wear and tear factor required by the Act.

On July 30, 2014 the New Jersey Supreme Court corrected the errors of the trial judge and the appellate courts, stating that “extended sitting” was not a “condition, event, or happening to support a compensable cardiovascular claim.”

Why the reversal is good for New Jersey’s Employers.

Petitioner’s attorneys relied on the lower court’s decision to solicit claims, telling prospective petitioners that all sorts of conditions and illnesses could be attributable to “workplace sitting” such as deep venous thrombosis, lumbar disc disease, and neck strain. The Supreme Court’s decision is clearly written and directly addresses these specious claims by stating that “the [Workers’ Compensation Act] prevent[s] recovery from cardiac incidents, which, as a matter of circumstance, happen to manifest themselves in the workplace.”

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Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com