2009 edition of "New York Workers' Compensation Law" published.

“New York Workers’ Compensation Law [2009 ed.]” is published and now available on Amazon.
Product description (from Amazon): The most practical, up-to-date and easy-to-understand guide to workers’ compensation claims in New York. Tackling issues like employee fraud, this book is designed for employers, attorneys, claim adjusters, physicians, self-insured employers and vocational rehabilitation workers. This guide is written by a New York State attorney and provides a detailed analysis of relevant statutes and regulations; a complete recap of recent court decisions; and a full description of current practice and procedure. This book provides a behind-the-scenes look at the complicated issues and makes the law understandable for business owners. Updated chapters on OSHA regulations and HIPAA considerations are included.

Paperback: 174 pages
Publisher: CreateSpace (July 27, 2009)
Language: English
ISBN-10: 1448670659
ISBN-13: 978-1448670659
Product Dimensions: 9 x 6 x 0.4 inches

Special thanks to John Grayson for the cover photograph. Check out John’s digital gallery of photography and artwork at suffocate.us.

New case: Does Second Injury Fund contribute where 'continuing to work' was the second injury?

The ‘Second Injury Fund’ refers to the special fund established by N.J.S.A. 34:15-95. This part of the Workers’ Compensation Act allows the Department of Labor to collects a surcharge on all workers compensation policies issued in New Jersey. The fund used to be called the “2% Fund” because the surcharge was originally set at 2%. Now the surcharge is closer to 8%. Practitioners use the terms ‘Second INjury Fund’ and ‘2% Fund’ interchangeably.

The Second injury fund was established to encourage employers to hire workers who had prior disabilities. After World War I, there were a great many former soldiers returning to employment. Many had amputated limbs, internal injuries, and other conditions. Employers did not want to hire these former soldiers because they feared that a new industrial incident, such as the loss of another limb in a machine accident, could leave the employer exposed for paying ‘total disability’ benefits to the soldiers.

So, the Second Injury Fund was established. The Fund was instructed to pay compensation for “pre-existing illness, injury, or disease” when the pre-existing disability, considered together with the effects a new accident or injury, made the employee totally disabled. For example, imagine a fact scenario where a factory hires a worker who was missing a lower leg. The employee is then injured while working for the new employer – losing his other lower limb. Under the New Jersey Law (“loss of any two limbs shall constitute total disability”) the claimant is ‘totally disabled.’

Under the current law, the employer compensates the claimant for the percentage of overall disability contributed by the employer’s accident. In this case, presume that figure to be 50%. Applying the Second Injury Fund law, the State of New Jersey’s fund then compensates the claimant for the rest of his life – starting to pay once the employer’s contribution is exhausted (i.e., the 50% award has been paid out).

The Second Injury Fund pays in only the following situations:
(1) The claimant is now totally disabled;
(2) The claimant had a measurable disability before he came tot he employment; and
(3) It was the combination of the prior disability plus the employment accident which now renders the claimant totally disabled (in other words, the Second Injury does NOT pay where the claimant is totally disabled as a result of the ‘last accident’ alone).

In the case decided June 15, 2009, the respondent argued that yes, the claimant did sustain a compensable injury at work (he hurt his neck in 1998). The respondent went on to argue that the claimants subsequent employment duties (which were off-and-on during 1998 and 1999) worsened the claimant, causing him to be permanently and totally disabled. Basically the employer was asking the Court to find that the original work accident was the ‘pre-existing disability’ and that the “subsequent work-related aggravation of the condition” due to “occupational aggravation” was the ‘final accident.’ According tot he respondent’s argument, these two separate injuries combined to make the claimant totally disabled, thereby triggering exposure (and contribution from) the Second Injury Fund.

The Judge of Compensation held that the respondent could not show ‘subsequent occupational aggravation’ and that it was the natural progression of the first, specific incident, which caused the claimant’s total disability. By ruling this way, the Judge of Compensation denied the employer the possibility of reduced exposure – because the employer could not ‘shift’ part of it’s exposure to the Second Injury Fund.

Case: Falk v. Central Jersey Mechanical, Inc., A-4467-07T1 (App. Div. June 16, 2009).

Indemnification provisions and claims made by your employees

The New Jersey Appellate Court (in Selby v. New Carson Hills Limited Partnership, App. Div. 36-2-2926) reviewed a case where an injured employee sued his employer’s landlord after receiving workers’ compensation benefits. The landlord moved to enforce an indemnification clause in the lease against the employer, who already paid the injured employee workers’ compensation benefits. Under the terms of the lease, the landlord argued that the employer should “indemnify” the landlord for any recovery the injured worker won against the landlord.
This case is interesting because it addresses a fairly common situation. In this case, if the landlord won, the employer would have already paid the injured employee his workers’ compensation benefits, and then would have to pay again (by reimbursing the landlord for any money the landlord had to pay the employee for maintaining the premises in a negligent fashion).
The Court, in throwing out the ‘indemnification claim’ against the employer ruled that (1) The ‘indemnification provision’ in the lease was so broad and vague it was unenforceable; and (2) that the New Jersey Workers Compensation Act prevented this indemnification which would essentially abrogate the ‘exclusive remedy provision’ of the New Jersey Act.
Question about an indemnification provision or a third-party action involving on of your employees against your landlord? Contact Greg Lois.

Are out of state workers entitled to benefits?

In Continental Casualty Co. v. Ameritemp, Inc., the Appeals panel found that a Pennsylvania employer had to provide New Jersey workers’ compensation benefits to their employees who ‘occasionally traveled to New Jersey in the course of their employment.’ Also at issue was the payment of premiums to secure coverage in New Jersey.

Here are the facts regarding the employees:

  • The employees were hired in Pennsylvania;
  • The employer was located in Pennsylvania;
  • The employees lived in New Jersey; and
  • The employees occasionally traveled to New Jersey during the course of their employment.

The Pennsylvania employer did not want to pay premiums for a New Jersey workers’ compensation policy. Initially, the workers had been viewed as Pennsylvania employees, and the employer did not pay New Jersey premiums for them.
Then, two of the employees got injured at work, and filed claims for benefits in New Jersey. The court decision (cited above) resulted from that litigation.
The Judge of Compensation ruled that there were six grounds on which the applicability of a ‘specific states’ Workers’ Compensation Act could be asserted:

  1. That the local state is place where the injury occurred;
  2. That the local state is the place of the making of the contract of employment;
  3. That the local state is the place where the employment relation exists or is carried out;
  4. That the local state is the place where the industry is localized,
  5. That the local state is the place where the employee resides; or
  6. That the local state is the place whose statute the parties expressly adopted by contract.

In reviewing this particular case, the Judge found that the employees “lived in New Jersey and the employment relationship exists or is carried out in New Jersey” and so concluded that the employees could bring claims for workers’ compensation benefits under the New Jersey Workers’ Compensation Act. The reviewing court went on to note that the employee could have brought claims for benefits under Pennsylvania law, as well. (New Jersey law allows a claimant to maintain multiple claims in any jurisdiction for injuries relating to the same accident, but that the multiple awards/settlements would be ‘set off’ against each other).
In conclusion, this case is a good restatement of the basic formulation (the ‘six factors’ laid out above) used by the New Jersey courts in determining whether a claimant is considered a ‘New Jersey’ employee for the purposes of collecting benefits available under the New Jersey Workers’ Compensation Act.
Questions regarding this case? Contact Greg Lois.

Fighting causal connection

Claimant “M.G.” injured his cervical spine in a work accident in 1994. He settled his case in 1996. His condition worsened, and he re-opened his claim in 2001 and then again in 2005. Each time he ‘re-opened’ his case, his disability rating increased. When he ‘re-opened’ his case in 2005, M.G. claimed that his neck condition had worsened to the point where surgery had been required in 2003 – and that the surgery left him even more disabled than he was previously.
The respondent argued that it was the claimant’s pneumonia, combined with the fact that the claimant had AIDS, which caused the need for the 2003 surgery that further disabled the claimant.
The undisputed facts are that in 2003 M.G. was hospitalized with pneumonia. He couldn’t breathe and was hypoxic. Obviously, this was life-threatening for someone with AIDS. M.G. was intubated. Upon extubation, M.G. was “found to be quadriparetic, could not move his right upper extremity other than some muscle twitches . . .and could move his left upper extremity and his legs but only with difficulty.” Surgery was conducted to relieve spinal cord compression caused by the intubation.
M.G. argued that the quadraparesis resulted from the underlying (pre-existing) workers’ compensation injuries to his neck.
Respondent argued that there was an intervening cause for the claimant’s disability: a complication of intubation and extubation, necessitated by the claimant’s respiratory problems.
The Appellate Panel (Cuff, Fisher) agreed with the employer: The claimant’s respiratory problems were brought about by HIV, not the workplace injury, and the complications flowing from the respiratory treatment were not the responsibility of the employer (who last employed this claimant nine years earlier).
Petitioner’s attorney (predictably) argued that the respiratory condition merely ‘aggravated’ the claimant’s underlying cervical injuries, and that the employer should have been held liable. The Appellate Panel, applying a ‘but for’ test, stated that “the petitioner did not require surgery in question until after he contracted pneumonia, was intubated for his respiratory distress and then extubated . . . the pneumonia and the medical actions taken to address petitioner’s respiratory problems were not caused by the work-related injury but because the petitioner was HIV-positive.”

Case: M.G. v. JLL, App. Div 39-2-3908, Decided May 21, 2009. Questions about this case? Please contact me directly.

Defending Employers