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(c) 2015 Jon L Gelman, All Rights Reserved.

Wednesday, May 27, 2015

Pending Before the NJ Supreme Court

A-89-13 Estate of Myroslava Kotsovska v. Saul Liebman (073861)
Should the trial court have transferred this wrongful death and survival action to the Division of Workers' Compensation for a determination of the decedent's employment status where defendant raised the workers' compensation bar as an affirmative defense?
Certification granted: 5/19/14
Posted: 5/20/14
Argued: 3/16/15

Case below:

Argued March 20, 2013. Decided Dec. 26, 2013.
Background Estate of driver's home health aid filed wrongful death action against driver, stemming from accident in which driver accelerated vehicle while parking, hitting home health aid. Following jury trial, the Superior Court, Law Division, Union County 2012 WL 3965151, determined home health aid was independent contractor, found in favor of estate, and denied driver's motion for new trial. Driver appealed.

Holdings The Superior Court, Appellate Division, Accurso, J.A.D., held that: 
(1) Division of Workers' Compensation was proper forum for resolution of whether home health aid was driver's employee;
(2) jury instruction as to whether home health aid was employee or independent contractor did not adequately convey the law;
(3) taking judicial notice that person would suffer pain if leg was traumatically amputated while conscious was harmless error; and
(4) damages would be preserved pending remand.

Affirmed in part, reversed in part, and remanded.




Lumbermen's Underwriting Alliance in Receivership

On May 19, 2015, Lumbermen’s Underwriting Alliance, a reciprocal inter-insurance exchange organized under the laws of the State of Missouri ("Lumbermen's"), was ordered into receivership for the purposes of rehabilitation by the Circuit Court of Cole County, Missouri (the "Court"). 

The Court appointed John M. Huff, Director of the Missouri Department of Insurance, Financial Institutions & Professional Registration, and his successors in office, as the statutory Receiver of Lumbermen's. U.S. Epperson Underwriting Company, as Attorney-in-Fact for Lumbermen's, consented to the receivership. 

Pleadings and other information can be found by clicking here. The Judgment, and all subsequent proceedings concerning Lumbermen's, will be conducted in accordance with Mo. Rev. Stat. §§ 375.1150 to 375.1246.

Friday, May 22, 2015

Compensable Mental Stress and Conflict of Law Decisions Posted

The NJ Division of Workers' Compensation [NJDWC] today published 3 Court of Compensation trial level decisions. All were favorable to the injured workers and their dependents.

1. Mental Stress: Stress (harassment) particular to employment results in compensable psychiatric claim
Ross v. City of Asbury Park
06–28659; decided July 28, 2008 by the Honorable Leslie A. Berich
Petitioner alleged compensable injury as a result of mental stress created by prolonged exposure to a hostile work environment. Respondent denied these allegations. After applying the Goyden test along with other relevant legal principles, the Judge of Compensation found that there were objectively stressful working conditions peculiar to the petitioner’s working environment which entitled the petitioner to workers compensation benefits.

2. Mental Stress: Specific event (Hurricane) results in compensable suicide claim
Wilde v. Township of Cranford
99–40680; decided January 17, 2008 by the Honorable Leslie A. Berich
Petitioner filed a claim for dependency benefits for herself and her two children by asserting that her husband suffered a stress-induced occupational suicide. The respondent defended against the claim by contending that the work of the deceased, including his work as a policeman during Hurricane Floyd, was not causally related to his suicide. After careful consideration of the evidence, the Judge of Compensation awarded dependency benefits based on her finding that the work of the deceased as a policeman during this storm "lead to a loss of normal rational judgment that resulted in his suicide".

3. Conflict of Laws: NJ law applied where a special state interest existed
Spiros v. Atlantic Ambulatory Anesthesia Assocs. & Shrewsbury Surgical Center
12–22032; 13-1069 decided October 27, 2014 by the Honorable Leslie A. Beric
Medical providers filed applications for payment/reimbursement of medical expenses, which alleged that the insurance carrier for the employer unreasonably reduced the petitioner’s bills for services rendered. The carrier filed an answer in which it denied liability and jurisdiction, asserting the petitioner’s bills could be paid only at a contractual rate highly limited by Tennessee statute. The carrier also filed motions to dismiss the medical provider claims. In analyzing whether New Jersey has a special state interest in cases where medical providers provide services in New Jersey to injured workers, the Judge of Compensation found that N.J.S.A. 34:15-15 gives New Jersey’s Division of Workers’ Compensation exclusive subject matter jurisdiction and New Jersey law applies where the workers’ compensation benefits were provided in this state. Accordingly, the carrier’s motions to dismiss the medical providers’ claims were denied.

Summaries were provided by the NJ DWC.

Memorial Day

Harry S. Truman speaking at Memorial Day services at the
Amphitheatre of Arlington National Cemetery. May 30, 1948.



Tuesday, May 19, 2015

Who is really paying the bills?

"The failure of many employers to prevent millions of work injuries and illnesses each year, and the failure of the broken workers’ compensation system to ensure that workers do not bear the costs of their injuries and illnesses, are truly adding inequality to injury. " OSHA 2015

Related articles

Monday, May 18, 2015

Bill delays compensation for asbestos victims, puts privacy at risk

Washington, D.C. — The following is a statement from American Association for Justice CEO Linda Lipsen on today’s markup of the Furthering Asbestos Claims Transparency (FACT) Act (H.R. 526) in the U.S. House of Representatives Committee on the Judiciary:

“Asbestos is still legal in the United States, and with 12,000 to 15,000 Americans suffocating to death every year from asbestos diseases, Congress should act to protect the public by demanding transparency from asbestos corporations. Instead, the FACT Act will grant a handout to the very corporations that poisoned and killed hundreds of thousands of Americans, while doing nothing to prevent further exposure to this deadly toxin.

“The asbestos industry is the only supporter of the FACT Act, and to date, this committee has refused to hear testimony from people who have experienced the ravages of asbestos diseases. Americans should be outraged that this markup will go forward without consideration of the people who will shoulder the entire burden of this one-sided bill – asbestos victims and their families."

The Role Workers’ Compensation Plays in the Amtrak Train 188 Derailment

The unfortunate crash of Amtrak 188 left 8 people dead and injured over 200 people. Compensation benefits for victims and their families face a host of complex and conflicting legal remedies. The National Transportation Safety Board is investigating an Amtrak derailment in Philadelphia, Pa.

Today's post is by guest author Brianne Rohner Erickson of the Nebraska Bar.

Our sympathies go out to all of the friends and families of the victims of Tuesday’s Amtrak passenger train derailment in Philadelphia, as well as a wish for the recovery of those injured. The latest news reports indicate that, as of Friday morning, the crash has left at least eight dead and more than 200 injured.