Tag Archives: COVID-19

More Covid-19 Claims: Third Fridays Podcast

We live in a COVID-19 quarantine world now, so host Christian Sison is taking a “business as usual” approach with the second iteration of the Third Fridays podcast using remote appearances from guests. This month, Jeremy Janis and Adam Lowenstein discuss their recent litigation wins at the Appellate Division level. With practical advice to use in an impractical world, Christian can’t help but call foul on a new Board Panel Decision refuting the need for work search during the quarantine restrictions. discuss practical aspects of defending COVID-19 claims before the Workers’ Compensation Board in New York.

Continue reading More Covid-19 Claims: Third Fridays Podcast

Coronavirus and New Jersey Workers’ Compensation: A Practical Guide

TLDR

Most coronavirus claims will not be compensable under New Jersey’s Workers’ Compensation Act. While infection or illness caused by workplace exposure can be found compensable the petitioner must show either (a) a specific incident causing the infection or illness or (b) exposure to “peculiar” conditions unique to the employment which resulted in the illness. Simply working with an infected co-employee or being exposed to the general public will generally not satisfy the “peculiar” requirement.  The only exception to this general rule against compensability is that for first responders, mere “potential exposure” triggers a presumption of compensability. Medical treatment is required for compensable cases and would include testing; however pre-injury testing and prophylactic measures such as quarantine are not considered “medical treatment” in New Jersey.

Part I. How Traumatic/Specific Incident Claims Will be Handled: Nearly All Will Be Denied

§1.01   Comparing Traumatic Injury Claims to Occupational Disease Claims

Generally, the concept of what is a “traumatic injury” is simple: an unexpected accident or incident which injures an employee. The petitioner bears the burden of demonstrating a specific incident caused illness or infection.

§1.02   Standard of Proof for Entitlement to Medical and Wage-Replacement Benefits in Accidental Traumatic Injuries

N.J.S.A. 34:15-7 provides in part:

(C)ompensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of employment shall be made by the employer.

That compensation will be paid for an injury either partial in character or total which is permanent.

A petitioner must prove legal causation (the injury is work-connected) and direct medical causation (the injury is a physical or emotional consequence of work exposure). To be compensable, the claimant must show a direct link from a specific exposure to the resulting condition. For example, a “needlestick” incident which occurred during the course of employment, where the exposure to the patient’s blood or bodily fluids directly led to the contracture of the disease or illness.

§1.03   The Standard of Proof for Permanent Disability Benefits in an Accidental Traumatic Claim

This is the prime legal/factual issue to be established, negotiated, challenged, and litigated in a workers’ compensation case. In traumatic injuries, where the petitioner alleges permanent disability resulting from a specific accident, often the only avenue of defense is to challenge the “nature and extent” of permanent disability. To do so vigorously, the factual/medical investigations discussed above must be conducted. Then, the legal standards for degree of permanency can be applied.

Permanent partial disability is defined at N.J.S.A. 34:15-36 as “a permanent impairment caused by a compensable accident or compensable occupational disease, based upon demonstrable objective medical evidence, which restricts the function of the body or of its members or organs.”

As set forth at length above, in Perez v. Pantasote, Inc., the Supreme Court states that:

In summary, then, the employee must first prove by demonstrable objective medical evidence a disability that restricts the function of his body or its members or organs. Second, he must establish either that he has suffered a lessening to a material degree of his working ability or that his disability otherwise is significant and not simply the result of a minor injury. The burden of proving both of these elements rests with the petitioner.[1]

The Supreme Court wants petitioners to present objective medical evidence to establish that a permanent disability exists. What does this mean? What tests meet this burden? The Supreme Court has found that range of motion test results are generally subjective and alone will not satisfy the requirements of “demonstrable objective medical evidence.”[2] There is no numerical threshold to measure “minor injuries.” If there has not been an appreciable impairment of the employee’s ability to work, we may look to a second criterion, whether there has been a disability, in the broader sense of impairment, in carrying on the “ordinary pursuits of life.”

A lack of complaints will not bar recovery. In Porter v. Elizabeth Bd. of Educ.,[3] the petitioner underwent disc surgery and demonstrated objective medical evidence of disability, but he did not complain of pain or difficulty. However, he was awarded benefits. The Court found that “his injury was not minor and the legislature never intended to deny compensation for such disability simply because the petitioner did not complain enough.”

Minor respiratory conditions are not eligible for permanent disability awards under New Jersey’s Workers’ Compensation Law; this is because many workers suffer from occasional bronchitis or mild asthma with no significant effect on their ability to work or their quality of life.[4] It is possible for a workers’ compensation claimant to have a work-related health problem that is not sufficiently debilitating to be compensable.[5] In Perez v. Capitol Ornament, Concrete Specialties, Inc.,[6] the Appellate Panel instructed that a Workers’ Compensation Judge must consider impact of injury on a petitioner’s ability to work in view of his limited educational and intellectual resources and not base his decision on a “range” of disability for a particular type of injury. While this is a “common sense” decision, it also destroys the continuity of awards since a fractured arm will engender more exposure in a laborer than the same injury to a lawyer.

§1.04 Benefits and Treatment in an Accidental Traumatic Claim.

The New Jersey Workers’ Compensation Act provides four benefits to workers (and their dependents) who suffer a job-related injury. The four benefits are:

  1. Medical Benefits. Employers must provide immediate, necessary, and curative medical treatment to an injured worker. The employer directs and controls care. Medical care is provided without prejudice to the employer’s ability to later argue that injury was not work related.
  2. Temporary Disability Benefits. Employers must provide wage continuation benefits to employees during recovery from an injury.
  3. Permanent Disability Benefits. An employee, injured on the job, who can prove permanent residual effects of the injury is due monetary compensation. These benefits can be for partial or total disability.
  4. Death benefits. Employers must contribute to the funeral costs of an employee killed on the job. If the decedent had dependents, the employer must pay benefits to the deceased worker’s survivors.

§1.04 Medical Benefits in Regard to Infectious Diseases.

Where the illness is found compensable, medical treatment includes diagnostic testing and is the sole responsibility of the employer/carrier.[7] Negative test results and “screening” or preventative testing is not covered by the Act. Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers’ compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.

Part II. How Occupational Exposure Claims Will be Handled: Deny Them!

§2.01 Defining Occupational Disease

Occupational disease can range from Lyme disease contracted by a golf-course groundskeeper from a tick[8] to delayed-onset post-traumatic stress disorder. N.J.S.A. 34:15-31 provides:

a. For the purpose of this article, the phrase “compensable occupational disease” shall include all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.

b. Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of body is diminished due to the natural aging process thereof is not compensable.

§2.02 Liable Carrier or Employer

This rule of statutory construction from the New Jersey Supreme Court’s holding in Bond v. Rose Ribbon Carbon & Mfg. Co.,[9] instructs that where an occupational disease is caused or aggravated by exposure during a period when there are several respondents or insurance carriers on the risk, the last carrier shall be responsible for payment of compensation. The Bond Doctrine has since been drafted into the statute.

However, to impose liability on the “last employer” in an occupational disease case, there must be a showing of actual causation or contribution to the petitioner’s condition by the work exposure during such employment.[10]

§2.03 Types of Occupational Claims Found Compensable

Occupational diseases or conditions compensable under New Jersey’s Act include hearing loss[11], tinnitus[12], cardiovascular or cerebrovascular injuries[13], cardiac injuries[14], psychiatric[15], and orthopedic.

§2.04 Benefits and Treatment in an Occupational Exposure Claim.

The benefits available to a petitioner alleging injury or disability due to an occupational exposure are the same as the benefits available to a petitioner alleging a specific traumatic injury. N.J.S.A. 34:15-32 provides:

The compensation payable for death or disability total in character and permanent in quality resulting from an occupational disease shall be the same in amount and duration and shall be payable in the same manner and to the same persons as would have been entitled thereto had the death or disability been caused by an accident arising out of and in the course of the employment.

In determining the duration of temporary and permanent partial disability, either or both, and the duration of payment for the disability due to occupational diseases, the same rules and regulations as are now applicable to accident or injury occurring under this article shall apply.

The New Jersey Workers’ Compensation Act provides four benefits to workers (and their dependents) who suffer a job-related injury. The four benefits are:

  1. Medical Benefits. Employers must provide immediate, necessary, and curative medical treatment to an injured worker. The employer directs and controls care. Medical care is provided without prejudice to the employer’s ability to later argue that injury was not work related.
  2. Temporary Disability Benefits. Employers must provide wage continuation benefits to employees during recovery from an injury.
  3. Permanent Disability Benefits. An employee, injured on the job, who can prove permanent residual effects of the injury is due monetary compensation. These benefits can be for partial or total disability.
  4. Death benefits. Employers must contribute to the funeral costs of an employee killed on the job. If the decedent had dependents, the employer must pay benefits to the deceased worker’s survivors.

Medical treatment will include testing for claims where the illness is found to be compensable. Quarantine or isolation is a preventative/prophylactic measure that is not covered by workers’ compensation. Lost time due to quarantine would be compensated either directly by the employer (if at all), or in the case of furlough or work shutdown, by the state unemployment remedy.

§2.05 Special Rules for Public Safety Workers in New Jersey

N.J.S.A. 34:15-31.5 provides a presumption of compensability if a public safety worker can demonstrate exposure at work to “the excretions, secretions, blood or other bodily fluids of one or more other individuals or is otherwise subjected to a potential exposure, by the other individual or individuals, including airborne exposure, to a serious communicable disease, or is otherwise determined to be infected with or at significant risk of contracting the serious communicable disease.” The Statute also states “If it is ascertained that the public safety worker has contracted a serious communicable disease or related illness under the circumstances set forth in subsection a of this section, there shall be a presumption that any injury, disability, chronic or corollary illness or death of the public safety worker caused by, attributable to, or attendant to the disease is compensable under the provisions of R.S. 34:15-1 et seq.”

First Responder is defined as

…a member, employee, or officer of a paid, partially-paid, or volunteer fire or police department, force, company or district, including the State Police, a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident, either as a volunteer, member of a Community Emergency Response Team or employed or directed by a health care facility.


Have a question about a coronavirus claim in New Jersey?

Contact Greg Lois, Managing Partner of Lois Law Firm LLC, with any questions.


[1] Perez v. Pantasote, Inc., 95 N.J. 105 at 118 (1984).

[2] Colon v. Coordinated Transp., Inc., 141 N.J. 1 (1995).

[3] Porter v. Elizabeth Bd. of Educ., 281 N.J. Super. 13 (App. Div. 1995).

[4] N.J.S.A. 34:15-36, which states “Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.”

[5] Earl v. Johnson & Johnson, 158 N.J. 155 (1999).

[6] Perez v. Capitol Ornament, Concrete Specialties, Inc., 288 N.J. Super. 359 (App. Div. 1996).

[7] N.J.S.A. § 34:15-15.

[8] Bird v. Somerset Hills Country Club, 309 N.J. Super. 517 (App. Div. 1998), cert. denied, 154 N.J. 609 (1998).

[9] Bond v. Rose Ribbon Carbon & Mfg. Co., 42 N.J. 308 (1964).

[10] Vastino v. Man-Roland, Inc., 299 N.J. Super. 628 (App. Div. 1997), cert. denied, 151 N.J. 464 (1997).

[11] N.J.S.A. 34:15-35.10 through N.J.S.A. 34:15-35.22

[12] See Schorpp-Replogle v. N.J. Mfrs. Ins. Co., 395 N.J. Super. 277 (App. Div. 2007).

[13] N.J.S.A. 34:15-7.2.

[14] Id.

[15] Goyden v. State, Judiciary, Superior Court of N.J., 256 N.J. Super. 438 (App. Div. 1991), aff’d., 128 N.J. 54 (1993).