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(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Sunday, November 30, 2014

On Black Friday, Walmart Is Pressed for Wage Increases

Today's post was shared by Steven Greenhouse and comes from mobile.nytimes.com

While millions of shoppers flocked to Walmart stores nationwide on Black Friday, thousands of protesters descended on Walmarts to protest what they said were the retailer’s low wages.

About 300 people rallied Friday morning at a Walmart near Union Station in Washington, while 11 Walmart workers and supporters were arrested on charges of blocking traffic outside a Walmart on West Monroe Street in Chicago. At the Walmart in North Bergen, N.J., several hundred union members and others protested, including Randi Weingarten, president of the American Federation of Teachers, whose placard said, “Walmart: Breaking the Promise of America.”

Ronee Hinton, a cashier at a Walmart in Laurel, Md., joined a morning protest at the Walmart in Washington, calling on the company to increase everyone’s pay to at least $15 and hour and give more workers full-time and less erratic schedules.

“It’s very hard on what I earn,” said Ms. Hinton, noting that she typically earns about $220 a week — she earns $8.40 an hour and often works about 26 hours a week. “Right now I’m on food stamps and am applying for medical assistance. It would help a lot to get full time.”

In recent days, leaders of Our Walmart, a union-backed group of Walmart employees, said there would be protests at 1,600 stores on Black Friday. Friday afternoon, officials from Our Walmart said that with the protests unfolding, they could not say how many Walmart employees had...

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Friday, November 28, 2014

Feds seeking significant damages against DuPont for contamination in Pompton Lakes

Today's post is shared fom northjersey.com/
The federal government is seeking significant damages from DuPont for decades of pollution that has contaminated soil and water on the company’s sprawling 600-acre property where the facility played a key role in making ammunition for both world wars, and in adjacent neighborhoods in Pompton Lakes.

The U.S. Fish and Wildlife Service and DuPont have reached a cooperative agreement as part of the process to determine the extent of damage to fish, wildlife and other natural resources from the pollution generated by the munitions facility, which DuPont operated from 1902 to 1994. The two sides will share information, and DuPont has agreed to pay for some of the agency’s research. “This way we can work together to achieve restoration of the damaged natural resources more quickly,” said Melissa Foster, a senior biologist with Fish and Wildlife’s New Jersey field office.

Still, DuPont retains the right not to fund certain aspects of the investigation, in which case the agency would conduct them on its own.

The cooperative agreement...

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Rules of Dismissal Governed by Equitable Principles

In reversing a dismissal in Workers’ Compensation a NJ Court applied equitable principles as well as the guidance of the rules of the civil justice system. The inability of counsel to appear for what the Appellate Court deemed to be justifiable cause (conflicted with his obligation to serve as a court-appointed arbitrator in another court), resulted in a reversal of the dismissal.

“No petition shall be dismissed for want of prosecution or for failure to form-
ally adjourn the cause, until after notice shall be served by the respondent on
the petitioner or his attorney that unless the cause is moved for hearing within
one month from the date of the service thereof, the claim will be considered
abandoned and the petition dismissed subject, however, to the right to have the
petition reinstated for good cause shown, upon application made to the deputy
commissioner before whom the matter was heard or to the Commissioner of Labor
within one year thereafter. No claim heretofore made shall be considered abandoned because the petition was dismissed under this section, if such petition
has been reinstated for good cause shown, and such petition shall be deemed to
have been dismissed without prejudice to further proceedings upon said petition,
and further proceedings thereon shall be as effective as though said petition
had not been dismissed.” N.J.S.A. 34:15–51

The Court stated…… “Irrespective of the absence of express statutory authority and a one-year limitation imposed upon such a reopening in certain circumstances, N.J.S.A. 34:15–54, it is abundantly clear that the Division has the inherent power, “comparable to that possessed by the courts (R.R. 4:62–2 [now R. 4:50] ), to re-open judgments for fraud, mistake, inadvertence, or other equitable ground.” Beese v. First National Stores, 52 N.J. 196, 200 (1968). See also Estelle v.  Red Bank Bd. of Ed., 14 N.J. 256 (1954); Stone v. Dugan Brothers of N.J., 1 N.J.Super. 13 (App.Div.1948).”

“In the present case, we initially note that petitioner’s counsel was unable to appear to oppose the motion to dismiss because the hearing date conflicted with his obligation to serve as a court-appointed arbitrator in another court. We are unable to determine on this record why, under these circumstances, counsel’s seemingly valid adjournment request was denied. Counsel was then served with an order that referenced not only N.J.S.A. 34:15–54, but also a requirement that the case could not be restored unless it was ready to be tried or settled. Although petitioner’s surgery finally occurred in September 2011, within the one-year statutory period, the case was not ready until the doctor’s report was received on May 2, 2012. Petitioner then promptly moved to restore the case two weeks later.

“Arguably these circumstances may suffice to warrant equitable relief under Rule 4:50–1(f), especially should respondent be unable to demonstrate prejudice due to the delay beyond the one-year statutory period.

“In deciding the motion, the judge of compensation was clearly of the mistaken belief that he was unable to grant relief “[a]bsent specific authority in the statute.” To the contrary, the matter may be reopened if it qualifies under Rule 4:50–1(f), and even then, if the motion is found to have been brought within a reasonable time. See Hyman, supra, 157 N.J.Super. at 517. We conclude that this determination “is best made in the first instance by the judge of compensation, on a record fully developed for that purpose and accompanied by adequate findings.” Ibid. Accordingly we remand for a further hearing consistent with this opinion.
Remanded.

N.J.Super.A.D.,2014.
Not Reported in A.3d, 2014 WL 6634885 (N.J.Super.A.D.)


….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

2014 to be deadliest for grain engulfment in four years

Today's post was shared by Trucker Lawyers and comes from journalstar.com



It took only seconds.
Tim Hansen climbed inside the grain bin with a long pole, planning to shove it down into the corn to clear a crust of kernels stopping corn from funneling out to be loaded into trucks.
His grown son, Chris Hansen, stood outside the 60,000 bushel bin northeast of Dixon with a two-way radio that let him talk to his 60-year-old dad. They knew going inside a bin could be dangerous and liked to keep in contact as a precaution.
Chris tried to radio his dad but got no response. He banged on the side of the bin, turned off the auger then climbed to the top.
“When I got to the top of the bin and looked in, his bar was sitting dead smack over the center of the hole where it should have been but there was no dad,” Chris said.
It took rescue workers more than two hours to find Tim Hansen’s body at the bottom of the bin under 10 feet of corn. Chris believes there was a void in the grain that collapsed, causing Tim to fall backward and sucking him under.
One to three people die in Nebraska each year from becoming entrapped in grain.
Nationally, this year is expected to be the deadliest for grain engulfment since 2010, which was the deadliest year on record, according to Bill Field, professor in the department of Agriculture and Biological Engineering at Purdue University in West Lafayette, Indiana. Purdue publishes an annual summary of grain-related entrapments and engulfment in the United States.
The number of incidents recorded this year surged passed ...
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Administration Warns Employers: Don’t Dump Sick Workers From Plans

Today's post was shared by Kaiser Health News and comes from kaiserhealthnews.org

As employers try to minimize expenses under the health law, the Obama administration has warned them against paying high-cost workers to leave the company medical plan and buy coverage elsewhere.
Such a move would unlawfully discriminate against employees based on their health status, three federal agencies said in a bulletin issued this month.
Brokers and consultants have been offering to save large employers money by shifting workers with expensive conditions such as hepatitis or hemophilia into insurance marketplace exchanges established by the health law, Kaiser Health News reported in May.
The Affordable Care Act requires exchange plans to accept all applicants at pre-established prices, regardless of existing illness.
exchange choice employersBecause most large employers are self-insured, moving even one high-cost worker out of the company plan could save a company hundreds of thousands of dollars a year. That’s far more than the $10,000 or so it might give an employee to pay for an exchange plan’s premiums.
“Rather than eliminating coverage for all employees, some employers … have considered paying high-cost claimants relatively large amounts if they will waive coverage under the employer’s plan,” Lockton Companies, a large brokerage, said in a recent memo to clients.
The trend concerns consumer advocates because it threatens to erode employer-based coverage and drive up costs and premiums in the marketplace plans, which would absorb...
[Click here to see the rest of this post]

When Raising the Minimum Wage Isn't Enough

From a business end of things, workers' compensation is all about money. Wages are the driving force that sets rates of compensation and premiums paid. From an employee standpoint workers' compensation is all about delivery of benefits in an efficient and adequate fashion. Wages also play a more important role....survival in a tough world.. Today's post was shared by Steven Greenhouse and comes from www.theatlantic.com

Vermont has some of the most progressive wage-and-hour laws in the country, but low-income workers are still struggling.
Lauren Giordano/The Atlanti
BURLINGTON, Vt.—Johann Kulsic arrived in this city with an optimistic feeling that he’d finally begun his ascendancy to the middle class. He’d been accepted into the University on Vermont with a partial scholarship, and he looked forward to leaving behind the poverty of his upbringing in Rhode Island, and making something of himself, perhaps studying computer science.
But as the freezing cold of a Vermont fall turned into winter, it slowly dawned on Kulsic that he might need to make a detour. He’d taken out a loan of $16,000 to cover the remainder of his expenses, and couldn’t earn enough to make the requisite payments on it—so he dropped out of college and started working at a local grocery store for $8.75 an hour, pennies above the state’s minimum wage.
After six months, he received a raise, to $8.85 an hour, and in January he'll get another, when the state's minimum wage climbs to $9.15—but raises don't do much good.
Kulsic only gets 33 to 35 hours a week, and struggles to pay for heat, food, and transportation. He typically rides a bike the three miles to work, but his bike broke, so these days, he walks or takes the bus. He’s asked for more hours—or more consistent hours, at least—but his employer, whose name he asked me not to use, doesn’t want to give...
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Ohio bill seeks extra retail pay on Thanksgiving

Today's post was shared by Steven Greenhouse and comes from www.huffingtonpost.com

COLUMBUS, Ohio (AP) — A lawmaker in Ohio wants stores in the state to pay triple wages for employees who work on Thanksgiving — an effort that comes as Macy's, the holiday's quintessential retailer, is allowing its workers to choose whether to work that day.
Both are attempts to counter frustration among workers and their families over holiday store hours that have expanded into the holiday.
State Rep. Mike Foley, a Democrat from Cleveland, said his bill would allow employees to bow out of the holiday shift without job sanctions while protecting family time from excessive consumerism.
It comes after a federal complaint filed earlier this year accused Wal-Mart of illegally firing, disciplining or threatening more than 60 employees in 14 states for participating in protests over wages and working conditions.
Worker organizations — especially the AFL-CIO labor coalition — have organized additional pickets around holiday staffing this year, alongside social media campaigns publicizing workers' personal accounts. They're pushing shopper boycotts on Black Friday — the day after Thanksgiving — and on the holiday itself, which is sometimes referred to as Gray Thursday.
Foley said the idea for his bill came from a call last year from a Cincinnati woman who said both she and her 82-year-old mother had been scheduled to work their retail jobs on Thanksgiving.
"I was offended by it," he said. "Can't there be one day that's carved out of...
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Wednesday, November 26, 2014

Stand With Workers on Black Friday

Today's post is shared from fbgslaw.com

Donald W. Fraulob


California Labor Federation is attempting to organize a protest against Walmart for its failure to pay its employees a living wage.  Here is the union alert:
Wouldn’t it be amazing if working families gathered together on Black Friday and sent a message to the country’s largest employer that its workers deserve a living wage and full-time work? Well, that’s exactly what’s going to happen, and you can be a part of it.
Walmart is the largest private employer in the world, and the Walton family, owners of the company, has more wealth than 43% of Americans combined. While the retailer rakes in $16 billion a year in profits, it pays poverty wages and many of its workers have to rely on public programs, like food stamps, to survive.
That’s why working families will be gathering at Walmart stores across the country on Black Friday to tell the Waltons to do the right thing.
We know Walmart pays attention to these protests, and you can help change not just the company’s policies, but the lives of workers. We have already seen recent successes, like when Walmart changed its policy on pregnant women after workers submitted a resolution to the company or when the retailer created a system that gives workers better access to hours by allowing them to sign up for open shifts online.
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Contributed by Donald W. Fraulob. Donald W. Fraulob is the firm’s managing attorney. He also maintains an active practice in Social Security Disability, Workers’ Compensation, and Wills and Trusts, including health care directives and special needs trusts. He is knowledgeable in union pension plans and benefits and was counsel in a major class action case which enhanced the disability and retirement pensions for members of our law enforcement community.

Mr. Fraulob has been recognized as highly competent and ethical by his peers and has been awarded special acknowledgment in Top Lawyers in Northern California for many years. He is certified by the State Bar of California Board of Legal Specialization as a certified specialist in Workers’ Compensation. Mr. Fraulob is a Workers’ Compensation Appeals Board arbitrator. His advice and counsel is sought out by many attorneys throughout the Sacramento area.

Mr. Fraulob is a graduate of McGeorge School of Law of the University of the Pacific. He is a member of the United States Supreme Court Bar, as well as federal district courts and all California Courts. He established the Student Law Center at California State University, Sacramento, and served as its first attorney/director. He is active in appellate litigation. Some of his appellate cases have resulted in extension of benefits in the Workers’ Compensation arena. He often speaks at legal conventions and seminars.


Tuesday, November 25, 2014

Administration Warns Employers: Don't Dump Sick Workers From Plans

Today's post is shared from npr.org

Man holding pills with banknote money flying away
Man holding pills with banknote money flying away

As employers try to minimize expenses under the health law, the Obama administration has warned them against paying high-cost workers to leave the company medical plan and buy coverage elsewhere.
Such a move would unlawfully discriminate against employees based on their health status, three federal agencies said in a bulletin issued in early November.
Brokers and consultants have been offering to save large employers money by shifting workers with expensive conditions such as hepatitis or hemophilia into insurance marketplace exchanges established by the health law, Kaiser Health News reported in May.
The Affordable Care Act requires exchange plans to accept all applicants at pre-established prices, regardless of existing illness.
Because most large employers are self-insured, moving even one high-cost worker out of the company plan could save a company hundreds of thousands of dollars a year. That's far more than the $10,000 or so it might give an employee to pay for an exchange plan's premiums.
"Rather than eliminating coverage for all employees, some employers ... have considered paying high-cost claimants relatively large amounts if they will waive coverage under the employer's plan," Lockton Cos., a large brokerage, said in a recent memo to clients.
The trend concerns consumer advocates because it threatens to erode employer-based coverage and drive up costs and premiums in the marketplace plans, which would absorb...
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BROKEN PROMISE: THE DEMISE OF “SURE AND CERTAIN RELIEF” UNDER THE NORTH DAKOTA WORKERS’ COMPENSATION ACT

Todya's post is shared from http://law.und.edu/
and is authored by By Dean J. Haas*

The workers’ compensation bargain in which employees gave up the
ability to sue their employers in exchange for “sure and certain relief” is
premised on the economic theory that such voluntary agreement between
competing interests promotes efficiency in an unfettered market. The cost
of workers’ compensation, ostensibly borne by employers, is supposedly
priced into the cost of the product or service. This is said to “internalize”
the cost to industry, a bedrock economic principle necessary to ensure
efficient allocation of resources and employee safety. Yet, in North Dakota,
the bargain is broken. Employee safety has taken a backseat to saving
employers money. This is evident in nearly every aspect of workers’
compensation in North Dakota. Medical necessity determinations are
subject to resolution under a binding dispute resolution mechanism without
a right to a hearing. And once disability benefits have been terminated, a
mistaken decision by the North Dakota Supreme Court precludes
opportunity for reinstatement in a great number of cases. In addition, the
byzantine and restrictive Century Code, conservative rulings of the Court,
and the adversarial litigation posture of Workforce Safety and Insurance
have resulted in the near death of the claimants’ bar. Employees who have
lost their job and are denied workers compensation benefits are often unable
to afford to hire an attorney. Further, Workforce Safety’s vigorous defense
strategy includes excessive reliance on out-of-state Independent Medical
Examinations. And the Agency’s consistent lobbying against any
legislation that improves benefits or merely levels the playing field
highlights the degree to which North Dakota has broken its promise of
relief to injured employees. Unfortunately, a remedy does not appear
anywhere on the horizon. Employees attracted to North Dakota find that if
they are unfortunate enough to suffer a work injury here, their financial
health is as devastated as their physical being. Admittedly, not all physical
injuries can be prevented. But human virtue requires North Dakota live up
to its promise of “sure and certain” relief.

Click here to read the entire article

* Dean J. Haas received his J.D. (with distinction) from the University of North Dakota in 1983
and an LL.M. in Health Law (honors) from the University of Houston in 2001. Haas was counsel
to the North Dakota Workers’ Compensation Fund from 1983-1995 and has represented hundreds
of injured workers since. Haas is currently practicing law at Larson Latham Huettl in Bismarck.

Wal-Mart workers plan Black Friday protests for higher pay

Today's post was shared by Steven Greenhouse and comes from www.latimes.com


Wal-Mart protest
Wal-Mart protest

Wal-Mart workers and their supporters plan to launch protests at stores across the country on Black Friday to push for higher wages and better working conditions for employees.Organizers say rallies and marches will occur at 1,600 Wal-Mart locations on the day after Thanksgiving in what they say will be the largest protests ever against the nation's biggest retailer.

Backing the demonstrations is Our Wal-Mart, the union-supported group of employees that has been pushing for a living wage of $15 an hour and more full-time positions. A protest earlier this month at a Wal-Mart in Pico Rivera ended with the arrest of 23 people for unlawful assembly and failure to disperse.
Martha Sellers, a cashier at the Wal-Mart store in Paramount,  said her low salary forces her to rely on ramen noodles and sometimes peanut butter to survive.
"The truth is it's not easy to talk about hunger and being hungry," Sellers said during a media call on Friday. She said she wants $15 an hour so she can buy groceries that are healthy.
Wal-Mart spokeswoman Brooke Buchanan said many of the protesters participating in the Black Friday demonstrations are being paid to show up by unions.
"We have seen this story before about the protesters and unions threatening to protest in a large amount of stores," she said. "What it turns out to be is a handful of stores with a handful of associates."
Large...
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Recall management poor at hospitals

Today's post was shared by Take Justice Back and comes from www.modernhealthcare.com

As the number of medical-device recalls has rapidly increased, so has the complexity of the recalls. That is raising questions about safety and risks for hospitals that mostly still track and locate faulty products manually.
There were 1,190 recalls of medical devices in 2012, nearly double the 604 recalls reported to the Food and Drug Administration in 2003.
In August, Customed, a Puerto Rico-based supplier of surgical kits, trays and packs, recalled 233 products because of sterility issues, making it the largest single-day recall in FDA history. Other high-profile recalls, such as the removal from the market of metal-on-metal hip implants starting in 2010, led to billions of dollars in lawsuits against the manufacturers and thousands of patients having to undergo revision surgery. Other recalls have been more obscure, such as when a supplier must issue corrective language for a user manual.
Most if not all hospitals have recall management programs in place. The Joint Commission issued standards for hospital recall policies that detailed how to respond to recalls and alerts. But experts at the ECRI Institute, a not-for-profit that studies the safety and effectiveness of medical products and services, say not all hospitals are updating their programs to reflect the growth and complexity of today's recalls.
“This issue is frequently flying under the radar of executives,” said Eric Sacks, ECRI's director of healthcare product alerts. “Supply chains are becoming...
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Surgical Tool Gets Strongest Warning

Today's post was shared by Take Justice Back and comes from online.wsj.com


A close-up photo of one of the currently approved morcellators.
A close-up photo of one of the currently approved morcellators.
A close-up photo of one of the currently approved morcellators. Dustin Chambers for The Wall Street Journal
The top U.S. health regulator warned Monday that a common surgical tool shouldn’t be used on most women during hysterectomies, a decision that caps nearly a year of debate and is expected to sharply curtail a procedure that the agency said can spread hidden cancer.
The Food and Drug Administration used its authority to call for an immediate “black box” warning for laparoscopic power morcellators, the strongest caution the agency issues. Typically, such warnings on product labels undergo a lengthy comment period before being completed, lawyers for device makers said.
“We believe that in the vast majority of women, the procedure should not be performed,” said William Maisel, deputy director for science and chief scientist at the FDA’s Center for Devices and Radiological Health.
The move strengthens guidance the FDA issued in April and draws tight boundaries around use of a device that divided gynecologists and alarmed women. Morcellators were being used in thousands of minimally-invasive procedures every year to remove growths known as fibroids. While fibroids are benign, they can be hard to distinguish from a dangerous form of cancer called uterine sarcoma, which can’t be reliably detected before surgery. Morcellators, which typically use a fast-spinning...
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Safety delays over faulty air bags

Today's post was shared by Take Justice Back and comes from www.washingtonpost.com

THE NATIONAL Highway Transportation Safety Administration is widening its crackdown on air bags at risk of exploding — potentially killing or maiming the people they are supposed to protect. This is another case in which it has taken years for the government and car companies to come to grips with the full scale of a deadly automotive defect, demonstrating again that the nation’s vehicle safety monitors aren’t doing a good enough job.
Takata is one of a few firms worldwide that manufacture air bags. The devices are supposed to deploy with enough force to provide protection in milliseconds, preventing dangerous impacts with other parts of a car. The bags at issue appear prone to deploy too violently, creating metal shards and propelling them toward people in the car. The problem has been linked to four U.S. deaths and many injuries — including those of Stephanie Erdman, who testified before a Senate panel on Thursday that she was blinded in one eye after her Honda air bag deployed.
Takata air-bag recalls have been going on since 2008, but evidence of the problem began emerging long before that. The company admitted last week that Honda sent it photos of a burst air bag in 2005 that it failed to investigate. Since then, the scale of the problem has grown alarmingly. Air bags in humid places seem to be more at risk, suggesting some interaction between chemicals used to deploy air bags and moisture. Recalls first focused on 8 million cars in humid...
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Monday, November 24, 2014

When An Employer Should Not Deny Medical Care

It is always tricky slope for an employer to deny medical care based on a pre-existing medical condition. The employer must be absolutely certain that the proofs offered at trial will provide a credible basis for a ruling by the Court. Without that certainty, the employer could be subject to paying for uncontrolled medical care as well as for penalties.

Some employers avoid those dire consequences by providing medical care with reservation as the NJ Statute allows. The employer can then subrogate a claim against the correct primary medical provider should the claim be denied.

“The employer need not be asked to authorize medical care but may be responsible for payment for such care entirely in cases where the employer has disavowed compensability of a claim which is ultimately found to be compensable.” 38 NJ Practice §12.7, Workers’ Compensation Law, Jon L Gelman.

 An employer recently lost an appeal from such an adverse ruling. The employer who challenged compensability of a back injury and denied “legitimate” medical treatment based on an alleged pre-existing MRI.  The employer was held liability for medical treatment when the Court found the testifying radiologist on behalf of the petitioner to be a credit witness.

“Johnson [injured worker] presented extensive medical proofs, including the testimony of treating physicians and expert witnesses. This included the deposition testimony of Steven P. Brownstein, M.D., a practitioner of diagnostic radiology. Brownstein opined that the disputed MRI could not belong to Johnson because herniated discs and bone spurs do not spontaneously disappear. Brownstein also stated that the 1999 MRI films depicted a fifty-year-old man, while Johnson’s 2006 MRIs were of a man no older than thirty-five.

Additionally, the employee testified that he never had the prior MRI. The Court found the petitioner to be a credible witness.

The employer refused to pay for medical care following from a compensable accident at work. The Court ruled that the actions of the employer were incorrect and that the employer should be held responsible for paying for medical care since it was requested by the injured employee and subsequently denied by the employer. Following the rule in Benson v Coca Cola Co., 120 N.J. Super. 120 (NJ App. Div. 1972),  a NJ employer was responsible for medical care requested by the employee and denied by the employer as the accident was held compensable.

“The JWC also found, pursuant to Benson v. Coca Cola Co., 120 N.J.Super. 60 (App.Div.1972) , that Johnson “was well within his rights to seek outside treatment” based upon City’s denial of the April incident, the dilatory fashion in which it referred Johnson for treatment after the May incident, and its refusal to provide medical care even when recommended by its first medical examiner. He thus concluded the exception expressed in Benson  applied and that it would have been futile for Johnson to have continued to request coverage for medical expenses.

The Compensation Judge is giving a wide spectrum of discretion as to determine the credibility of the testimony of the witnesses:
“Our highly deferential standard of review is of particular importance in this case, where appellant’s principal points of error hinge on the JWC’s credibility determinations. See Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014)  (quoting Sager, supra, 182 N.J. at 164).  The JWC has the discretion to accept or reject expert testimony, in whole or in part. Kaneh v. Sunshine Biscuits, 321 N.J.Super. 507, 511 (App.Div.1999) . The judge is considered to have “expertise with respect to weighing the testimony of competing medical experts and appraising the validity of [the petitioner’s] compensation claim.” Ramos v. M & F Fashions, 154 N.J. 583, 598 (1998 .

The Court went also reiterate the Belth Doctrine holding that the employer takes the employee as he finds him. While the Belth decision predates the 1979 Amendments to the NJ Workers’ Compensation Act it remains valid as to the exacerbation of an underlying medical issue. Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 219 A.2d 168 (1966).

“ Employers are responsible for treatment of a preexisting condition which is exacerbated by a work accident. Sexton v. Cnty. of Cumberland, 404 N.J.Super. 542, 555 (App.Div.2009) . The burden is on the employer to prove that the compensable accident was not the cause of the exacerbation. In this case, City did nothing more than attempt to prove that Johnson was lying about his 1999 medical conditions.  Even if City is correct, in the judge’s opinion, Johnson objectively established that the May 2006 accident caused him significant cervical and psychiatric injuries from which he currently suffers.


….
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.