Going-and-coming rule in NJ

The New Jersey Workers’ Compensation Act states that “employment starts when an employee arrives at the employer’s place of employment to report for work and [ends] when the employee leaves the employer’s place of employment.”

The Act provides exceptions for (1) paid travel time; (2) employees using an employer-authorized vehicle; (3) travel by emergency personnel (fire, police) traveling to an emergency. Generally, off-premises travel to and from work is not compensable, UNLESS the employer provides the transportation.

A recent case, decided February 22, 2007, discusses the application of the going-and-coming rule in the context of a familiar set of facts.

In Lawhead v. Harleysville Insur. Co., App. Div. February 22, 2007 (not approved for publication), defense attorney Mark Lawhead appeared in workers’ compensation court in Newark to represent his employer, Harleysville Insurance Company. He was busy in court until 2:45pm. He was scheduled to appear the following day in Freehold workers’ compensation court, and because he did not have the necessary files, he drove in a company-owned vehicle from Newark to his office in Somerset to pick them up. After retrieving the files, he was injured while driving from his office to his home in Tinton Falls (again, in the company-owned vehicle).

The Judge of Compensation found Lawhead’s injuries compensable by deciding that Lawhead was “engaged in an activity for his employer’s benefit when he had his accident” and because Lawhead was operating a company-owned vehicle at the time of the accident.

The Appellate Division panel disagreed and reversed the Compensation Judge, finding that the petitioner was “merely in the course of traveling from his office to his home at the end of a normal workday.” The Appellate Division found that the claimant was “engaged in his regular commute” and therefore not entitled to benefits.

Practice tip: The facts surrounding an off-premises accident are of paramount importance in determining whether the claim is compensable.

Tompkins McGuire continually monitors the decisions of the workers’ compensation courts. Any questions? Feel free to contact us!

New Uninsured Employer Forms

The Division of Workers’ Compensation has simplified the process for obtaining payment from the Uninsured Employers’ Fund.
From Director Calderone’s February 5, 2007 memo:

“The current law requires that a petitioner or the petitioner’s attorney make a request for payment in writing to the Commissioner of Labor and Workforce Development before the Uninsured Employer’s Fund (UEF) can comply with an order for petitioner benefits, counsel fees or other costs. To have each individual petitioner or petitioner attorney prepare separate letters for payment has created unnecessary benefit delays and expenses for the parties.”

The Division has created a new form that all UEF attorneys will have available at the time a judgment or order for UEF benefits is entered. The UEF attorney will bring the completed form back to the Division to commence the payment process. No additional letters or mailings will be required by the parties.

Occupational disease death claims in NJ

A panel of Appellate Division judges overruled the Judge of Compensation in this occupational disease death case. The Workers’ Comp Judge found that the decedent, a heavy smoker, was exposed to asbestos when he worked for Mid-State Sprinkler. The Judge of Compensation decided that the asbestos exposure was what caused the cancer that the claimant died from. The Appellate Division disagreed, finding that the plaintiff’s proofs did not establish medical causation and there was no evidence brought out at trial that the decedent had symptoms of asbestosis.

The facts in the case are important to the ruling of the Appellate Judges. The decedent worked as a sprinkler pipe installer for 29 years with different companies (ultimately, working for himself for the last fifteen years of his employment). The claimant was also a smoker: he smoked from age 15 to age 25, quit for about ten years, and then began smoking again for two years before he was diagnosed with cancer (small-cell type)in 1996.

Various witnesses were called who testified about the working conditions the claimant experienced. A union leader who testified on behalf of the plaintiff described the potential for exposure to asbestos. In addition, doctors testified about the epidemiology of cancer (Dr. Neugut for the claimant). The plaintiff’s medical experts testified that the “heavy smoking” combined with the exposures to asbestos to cause the claimant’s lung cancer.

The plaintiff’s medical expert testified that it was asbestos exposure and cigarette smoking “acting in synergy” which caused the claimant’s lung cancer.

Another medical expert, Dr. Kritzberg, who testified for the defendant Mid-State Sprinkler, said that the type of cancer (small-cell carcinoma) is closely linked to smoking, not asbestos exposure. Dr. Kritzberg also testified that the the claimant’s CT scans and x-rays did not show changes in the lungs consistent with asbestosis or asbestos exposure. Dr. Kritzberg testified that the medical records he reviewed showed that the claimant smoked “4 or 5 packs a day” from age 15.

The Judge of Compensation found it was “more probable than not” that the claimant’s exposure to asbestos caused his lung cancer.

The Appellate Judges reversed: they said that the medical proofs were insufficient to establish causation. Specifically, the Appellate Judges found that ‘small cell carcinoma’, like the cancer the plaintiff had, is not causally linked to asbestos exposure. Further, the “synergy” theory of causation was dismissed as not based upon scientific evidence.

Case: Leonard v. Mid-State Sprinkler, A-4952-06T2-06T2 (App. Div. decided May 20, 2008)(per curiam, unpublished as of blog date).

Lien Recovery under Section 40

Section 40 lien reimbursements now allow for a reduction of up to $750 for petitioner’s expenses where a petitioner has recovered money in a third-party suit. Petitioner’s expenses were previously limited to a reduction of $200. This change has been codified at N.J.S.A. 34:15-40. The upshot: workers’ compensation insurers will now recover slightly less from claimants who receive an award or settlement in a third-party suit.

Time to pay judgments shortened

New for 2007: A Judge of Compensation can now award interest on awards that have not been paid within 60 days. This is a significant change in the law, as compensation judges previously could not award interest for withheld payments until after 90 days. This change has been codified at N.J.S.A. 34:15-28. Practice tip: issue payments due under an award as soon as possible to avoid a motion for interest (which can be brought by petitioner’s counsel or the Judge herself).

Same-sex couples granted Workers' Comp benefits in NJ

We’ve already reported on P.L. 2006, c. 103, codified at N.J.S.A. 37:1-28 which permits same-sex couples to enter into legally sanctioned unions. The new law requires that civil union couples are to be provided “the same benefits as married couples with respect to workers’ compensation benefits including but not limited to survivors benefits and payment of back wages.” As required by this provision, dependency benefits under N.J.S.A. 34:15-13 are to be provided to same-sex survivors of a civil union.

Defending Employers