In a per curiam opinion, the NJ Appellate Division affirmed that a workers’ compensation insurance company is not required to defend an intentional tort claim following a Section 20 resolution.
Showing posts sorted by relevance for query intentional. Sort by date Show all posts
Showing posts sorted by relevance for query intentional. Sort by date Show all posts
Saturday, July 13, 2024
Tuesday, August 6, 2024
Intentional Tort v Negligence
A New Jersey appellate court found that an employee could not proceed with an intentional tort claim against an employer because the evidence needed to meet the two-prong standard was lacking.
Monday, August 10, 2020
Intentional Tort Claim Barred by the Exclusivity Rule
The New Jersey Workers Compensation Act (WCA), N.J.S.A. 34:15-1 to -146, generally prohibits employees from suing their employers for injuries sustained in workplace accidents. In a recent case the Court probed the boundaries of the "intentional wrong" exception to that general rule.
Tuesday, August 13, 2024
NJ Supreme Court to Review Workplace Insurance Exclusion
The NJ Supreme Court will review whether a workers’ compensation insurance company has a duty to defend an employer against personal injury claims brought by the employer’s employee under an employer's liability insurance policy.
Wednesday, July 3, 2024
Trench Injury Not an Intentional Wrong
A Federal Court held that injuries sustained while cleaning a trench conveyor trim removal system at a paper manufacturing facility did not meet the threshold test for an intentional tort.
Tuesday, April 2, 2019
Horseplay Is Not an Intentional Tort
Pranks at work may be
considered “arising out of the course of employment” and compensable
events. Those same injuries are not considered intentional events and would not give rise to cause a civil action against an employer for damages for pain and suffering.
Monday, January 8, 2024
Not A Violation of Public Policy
In rejecting an employee’s attempt to go forward with a lawsuit directly against an employer, the NJ Appellate Division ruled, in an unreported case*, that an employee, in a novel argument, may assert the “violation of public policy” as an allegation.
Thursday, August 2, 2012
NJ Supreme Court Bars Expansion of Injured Workers Remedies
Additional tort claim disallowed against insurance companies for intentional failure to comply with court of compensation's, an administrative agency, order to provide provide benefits.
Wade Stancil v. ACE USA (067640)
Argued 3/26/12 Decided 8/1/12 see http://tinyurl.com/d4pycqw
Wade Stancil v. ACE USA (067640)
Argued 3/26/12 Decided 8/1/12 see http://tinyurl.com/d4pycqw
SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized.)
Wade Stancil v. ACE USA (A-112-10) (067640)
Argued March 26, 2012 -- Decided August 1, 2012
HOENS, J., writing for a majority of the Court.
The Court considers whether an injured employee may sue
his employer’s compensation carrier for pain and suffering caused by the
carrier’s delay in paying for medical treatment, prescriptions, and other
services. Plaintiff Wade Stancil was injured in 1995
while employed by Orient Originals. He received workers’ compensation
benefits from his employer’s compensation carrier, defendant ACE USA (ACE).
In 2006, following a trial, the court of compensation determined that Stancil
was totally disabled. In 2007, Stancil filed a motion in the compensation
court seeking an order compelling ACE to pay outstanding medical bills.
During a hearing on the motion, the compensation
judge commented that ACE had a history of failing to make payments when ordered
to do so. On September 12, 2007, the compensation judge granted
Stancil’s motion, warned ACE against any further violation of the order to
pay, and awarded Stancil counsel fees. On October 29, 2007, the parties
returned to the compensation court for a further proceeding relating to
the disputed bills. After finding that the bills identified in the
September 12 order remained unpaid and that ACE’s failure to make payment was a
willful and intentional violation of the order, the court issued another
order compelling ACE to make immediate payment and again awarding counsel
fees.
The court commented on its limited ability to ensure that
carriers would comply with orders, noted that it lacked the authority to
enforce orders through contempt proceedings, found that Stancil had
exhausted his administrative remedies, and suggested that he seek further
relief in the Superior Court. In 2008, Stancil underwent additional
surgery and psychiatric treatment. Stancil’s physician attributed the
need for additional treatment to an earlier treatment delay caused by the
carrier’s delay in paying medical providers.
On April 15, 2009, Stancil filed this lawsuit
in the Superior Court. In his complaint, Stancil claimed that ACE required him to undergo medical examinations by physicians
of its own choosing and then rejected the recommendations of those
physicians and refused to authorize the recommended medical care. The
complaint stated further that Stancil obtained orders from the
compensation court, but ACE failed to comply. Stancil contended
that ACE’s failure to authorize needed treatment caused him unnecessary
pain and suffering, a worsening of his medical condition, and expenses
that should have been paid by ACE. ACE responded by filing a motion to
dismiss the complaint. ACE argued that the Workers’ Compensation
Act, N.J.S.A. 34:15-1 to -142 (the Act), is the exclusive remedy for the
claims pled in the complaint and therefore no damages could be awarded.
The trial court granted ACE’s motion. The court analyzed the
impact of then-recently adopted amendments to the Act and found that the Legislature
had foreclosed resort to the Superior Court for the kind of tort-based relief
demanded by Stancil.
The Appellate Division affirmed. 418 N.J.
Super. 79 (App. Div. 2011). The panel agreed with the trial court
that The Legislature’s amendments to the Act foreclosed Stancil’s claims.
The panel also rejected Stancil’s argument that ACE’s willful
disregard of compensation court orders met the Act’s intentional wrong exception
to the litigation bar. The Supreme Court granted certification limited to
determining whether an employee who suffered a work-related injury has a
common-law cause of action for damages against a workers’ compensation carrier
for its willful failure to comply with court orders compelling it to
provide medical treatment when the delay or denial of treatment causes a
worsening of the employee’s medical condition and/or pain and suffering.
207 N.J. 66 (2011).
HELD: An injured employee does not have a common law
right of action against a workers’ compensation carrier for pain and
suffering caused by the carrier’s delay in paying for or authorizing treatment
because 1) the workers’ compensation system was designed to provide
injured workers with a remedy outside of the ordinary tort or contract remedies
cognizable in the Superior Court; 2) in amending the Workers’ Compensation Act
in 2008, the Legislature rejected a provision that would have given the
compensation courts broader permission to authorize a resort to the Superior
Court and adopted a remedy that permits compensation courts to act through a
contempt power; and 3) 2allowing a direct common-law cause of action against a
carrier would undermine the workers’ compensation system by substituting a
cause of action that would become the preferred manner of securing
relief.
CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, and JUDGE WEFING (temporarily assigned) join in JUSTICE HOENS’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion. JUSTICE PATTERSON did not participate.
CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, and JUDGE WEFING (temporarily assigned) join in JUSTICE HOENS’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion. JUSTICE PATTERSON did not participate.
Related Blog Articles
Aug 05, 2011
The lower court had rejected the case and dismissed it holding that the jurisdiction for bad faith is exclusively within the purview of the Division of Workers' Compensation. Stancil v. ACE USA, 418 N.J. Super. 79, 12 A. 3rd 223...
Apr 23, 2012
A-112-10 Wade Stancil v. ACE USA (067640). 3. The Exclusivity Rule: Under the circumstances of this case, which include a finding by the federal Occupational Safety and Health Administration that the accident was the result ...
Wednesday, June 27, 2012
Willful OSHA Violation Alone Not Enough Alone to Circumvent the Exclusivity Doctrine
"New Jersey’s Workers’ Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.5, provides a prompt and efficient remedy for an employee’s claim against an employer for a workplace injury. The Legislature made the statutory workers’ compensation remedy its preferred mechanism for providing compensation to injured workers......Based on the strong legislative preference for the workers’ compensation remedy and an intentional-wrong standard that even an employer’s recklessness and gross negligence fails to satisfy, we hold that this matter falls short of demonstrating that an intentional wrong creating substantial certainty of bodily injury or death occurred. " Justice LaVecchia
A finding of a willful OSHA violation is not conclusive in determining whether the employer committed an intentional wrong for the purposes of the Workers' Compensation Act. Instead, it is one factor among the totality of circumstances to be considered. The issuance of a willful OSHA violation against employer (trench collapse injury) was insufficient to defeat a motion for summary judgment, so the Court examined the totality of the circumstances of the accident and applies the conduct and context prongs of the substantial-certainty standard.
In reviewing the substantial certainty of injury prong of the dual test to determine employer liability beyond workers' compensation, the court distinguished this case from all prior decisions by relying upon the fact that the employer did not intentionally remove a safety device. Noting that the employer's actions in this circumstance, failure to have a proper trench preventing collapse system in place, where the soil was poor in violation of OSHA provisions, did not eliminate the exclusivity of remedy. The court specifically indicated that an employer should not be mearly penalized for actions taken for economic business motivation.
Furthermore, the high threshold of the content prong of the test was not satisfied the court enunciate. "...The type of mistake in judgment by the employer and ensuing employee accident that occurred on this construction site was so far outside the bounds of industrial life has never to become contemplated for inclusion in the Act's exclusively bar," ie. mere violation of an OSHA safety requirements.
Monday, May 30, 2022
Dual Employment Status Bars Double Recovery
An employee may have dual employers but ultimately can only receive a single recovery from only one employer for work-related injuries. The “exclusivity doctrine,” permitting a complete recovery of damages against an employer, limits an injured worker’s benefit recovery to the compensation system, barring an intentional tort.
Wednesday, June 9, 2021
The Exclusivity Rule Is Not A Bar to a Discrimination Action
The New Jersey Supreme Court ruled that an employer could be liable under both the Law Against Discrimination Act [LAD] and the Worker's Compensation Act (WCA). Court reasoned that the dual remedies can work in harmony as they are both statutory claims. The Court noted that the common law remedies of the LADs are not prohibited by the WCA since they are statutory in nature. By allowing both claims to go forward, a worker is not limited to the statutory caps for recovery under the Worker's Compensation Act.
Friday, July 27, 2007
Workers' Compensation News - July 10, 2007, Vol. 5 Issue 107
Workers' Compensation News - July 10, 2007, Vol. 5 Issue 107
FLORIDA EXPANDS INTENTIONAL TORT EXCEPTION Employee's injury was substantial certainty from employer's failure to respond to requests for new ladder did not require proof that employer concealed danger. "Even though case law on the intentional tort exception to workers' compensation immunity is devoid of any defined test that will establish substantial certainty as a matter of law, it is evident that concealment of the dangerous condition is only one of several factors in a nonexclusive list. " Bakerman v The Bombay Company, ___So. 2d____, 2007 WL 1774420 (Fla.), decided June 21, 1007
OSHA ORDERED TO RELEASE TOXIC EXPOSURE DATABASE — More than 25 Years of Workplace Sampling Yields Public Health Research Bonanza Washington, DC — The U.S. Occupational Safety & Health Administration (OSHA) has wrongfully withheld data documenting years of toxic exposures to workers and its own inspectors, according to a federal court ruling posted today by Public Employees for Environmental Responsibility (PEER). As a result, the world’s largest compendium of measurements of occupational exposures to toxic substances - more than 2 million analyses conducted during some 75,000 OSHA workplace inspections since 1979 - should now be available to researchers and policymakers. Each year, an estimated 40,000 U.S. workers die prematurely because of exposures to toxic substances on the job. Press Release: http://www.peer.org/news/news_id.php?row_id=882 Decision: http://www.peer.org/docs/dol/07_02_07_finkel_foia_ruling.pdf
ASBESTOS: Travelers Settles AC&S Claims The Travelers Cos. Inc. said today it has settled litigation with ACandS Inc., a former distributor and installer of asbestos products, for $449 million.http://www.courant.com/business/hc-trav-litig,0,1651056.story
ASBESTOS: NO SAFE LEVEL OF EXPOSURE Cong. Jerrold Nadler (D-NY) held a hearing on June 25 on the federal government’s response to the hazardous air contaminants that polluted lower Manhattan after the 9/11 attacks. The featured witness was former EPA administrator Christine Todd Whitman, who was in the hot seat for her claims that the air in NYC was safe to breathe. Much less attention was paid to former OSHA assistant secretary John Henshaw, who sat next to Whitman, but was left largely unscathed by the questioning. At least one Henshaw exchange deserves attention. The former OSHA chief insisted there are “safe levels of exposure to asbestos.” FYI: The WHO’s policy statement on the elimination of asbestos-related disease is here and the Institute of Medicine’s report on Asbestos: Selected Cancers (2007) is here. http://thepumphandle.wordpress.com/2007/07/06/safe-levels-of-asbestos-by-john-henshaw/
............................
SUBSCRIPTION CHANGES
he workers' compensation mailing list is an informal means to periodically broadcast passive electronic messages to a large group of professionals with interest in workers' compensation law. It is distributed without charge to stimulate academic interest in various topics including case law, statutory law, administrative memorandum, proposed regulations and other various issues.
Subscription changes:
http://www.gelmans.com/FrontEnd/Email/join.asp
Past issues of Workers' Compensation News are archived & search-able in the Reading Room under "Mail Archives" http://www.gelmans.com/
Jon L. Gelman, Attorney at Law
1450 Valley Rd 1st fl,
PO Box 934,
Wayne NJ 07474-0934
Voice: (973)696-7900 / Fax: (973)696-7988 / e-mail: mailto:jon@gelmans.com
http://www.gelmans.com/
Author: Workers' Compensation Law (Thomson/West)
To purchase call: call 1-800-344-5008-Print: http://west.thomson.com/product/17152728/product.asp-Westlaw: http://www.westlaw.com/ (search under database NJPRAC)-CD-Rom.
FLORIDA EXPANDS INTENTIONAL TORT EXCEPTION Employee's injury was substantial certainty from employer's failure to respond to requests for new ladder did not require proof that employer concealed danger. "Even though case law on the intentional tort exception to workers' compensation immunity is devoid of any defined test that will establish substantial certainty as a matter of law, it is evident that concealment of the dangerous condition is only one of several factors in a nonexclusive list. " Bakerman v The Bombay Company, ___So. 2d____, 2007 WL 1774420 (Fla.), decided June 21, 1007
OSHA ORDERED TO RELEASE TOXIC EXPOSURE DATABASE — More than 25 Years of Workplace Sampling Yields Public Health Research Bonanza Washington, DC — The U.S. Occupational Safety & Health Administration (OSHA) has wrongfully withheld data documenting years of toxic exposures to workers and its own inspectors, according to a federal court ruling posted today by Public Employees for Environmental Responsibility (PEER). As a result, the world’s largest compendium of measurements of occupational exposures to toxic substances - more than 2 million analyses conducted during some 75,000 OSHA workplace inspections since 1979 - should now be available to researchers and policymakers. Each year, an estimated 40,000 U.S. workers die prematurely because of exposures to toxic substances on the job. Press Release: http://www.peer.org/news/news_id.php?row_id=882 Decision: http://www.peer.org/docs/dol/07_02_07_finkel_foia_ruling.pdf
ASBESTOS: Travelers Settles AC&S Claims The Travelers Cos. Inc. said today it has settled litigation with ACandS Inc., a former distributor and installer of asbestos products, for $449 million.http://www.courant.com/business/hc-trav-litig,0,1651056.story
ASBESTOS: NO SAFE LEVEL OF EXPOSURE Cong. Jerrold Nadler (D-NY) held a hearing on June 25 on the federal government’s response to the hazardous air contaminants that polluted lower Manhattan after the 9/11 attacks. The featured witness was former EPA administrator Christine Todd Whitman, who was in the hot seat for her claims that the air in NYC was safe to breathe. Much less attention was paid to former OSHA assistant secretary John Henshaw, who sat next to Whitman, but was left largely unscathed by the questioning. At least one Henshaw exchange deserves attention. The former OSHA chief insisted there are “safe levels of exposure to asbestos.” FYI: The WHO’s policy statement on the elimination of asbestos-related disease is here and the Institute of Medicine’s report on Asbestos: Selected Cancers (2007) is here. http://thepumphandle.wordpress.com/2007/07/06/safe-levels-of-asbestos-by-john-henshaw/
............................
SUBSCRIPTION CHANGES
he workers' compensation mailing list is an informal means to periodically broadcast passive electronic messages to a large group of professionals with interest in workers' compensation law. It is distributed without charge to stimulate academic interest in various topics including case law, statutory law, administrative memorandum, proposed regulations and other various issues.
Subscription changes:
http://www.gelmans.com/FrontEnd/Email/join.asp
Past issues of Workers' Compensation News are archived & search-able in the Reading Room under "Mail Archives" http://www.gelmans.com/
Jon L. Gelman, Attorney at Law
1450 Valley Rd 1st fl,
PO Box 934,
Wayne NJ 07474-0934
Voice: (973)696-7900 / Fax: (973)696-7988 / e-mail: mailto:jon@gelmans.com
http://www.gelmans.com/
Author: Workers' Compensation Law (Thomson/West)
To purchase call: call 1-800-344-5008-Print: http://west.thomson.com/product/17152728/product.asp-Westlaw: http://www.westlaw.com/ (search under database NJPRAC)-CD-Rom.
Thursday, November 29, 2012
Heath Concerns About the Misuse of Pesticides for Bed Bug Control
Hotel workers as well as consumes are being cautioned cautioned about exposure to pesticides to control bed bugs.
The Agency for Toxic Substances and Disease Registry (ATSDR) and the Centers for Disease Control and Prevention (CDC) are alerting the public to an emerging national concern regarding misuse of pesticides to treat infestations of bed bugs and other insects indoors. Some pesticides are being applied indoors even though they are approved only for outdoor use. Even pesticides that are approved for indoor use can cause harm if over applied or not used as instructed on the product label.
There has been a dramatic increase in the number of bed bug-related inquiries received by the National Pesticide Information Center (NPIC) over the past several years, with many involving incidents of pesticide exposure, spills, or misapplications. From January 2006-December 2010, NPIC reported 169 calls to their hotline where residents, homeowners, or pesticide applicators sprayed pesticides indoors to treat bedbugs. These cases involved pesticides that were misapplied, not intended for indoor use, or legally banned from use. Of those, 129 resulted in mild or serious health effects (including one death) for persons living in affected residences.
ATSDR warns that outdoor pesticides should not be used indoors under any circumstances. Homeowners and applicators should always carefully read the product label to make sure that:
it has an EPA registration number
The Agency for Toxic Substances and Disease Registry (ATSDR) and the Centers for Disease Control and Prevention (CDC) are alerting the public to an emerging national concern regarding misuse of pesticides to treat infestations of bed bugs and other insects indoors. Some pesticides are being applied indoors even though they are approved only for outdoor use. Even pesticides that are approved for indoor use can cause harm if over applied or not used as instructed on the product label.
There has been a dramatic increase in the number of bed bug-related inquiries received by the National Pesticide Information Center (NPIC) over the past several years, with many involving incidents of pesticide exposure, spills, or misapplications. From January 2006-December 2010, NPIC reported 169 calls to their hotline where residents, homeowners, or pesticide applicators sprayed pesticides indoors to treat bedbugs. These cases involved pesticides that were misapplied, not intended for indoor use, or legally banned from use. Of those, 129 resulted in mild or serious health effects (including one death) for persons living in affected residences.
ATSDR warns that outdoor pesticides should not be used indoors under any circumstances. Homeowners and applicators should always carefully read the product label to make sure that:
it has an EPA registration number
- it is intended for indoor use
- it is effective against bed bugs (the label should say it is meant to be used to treat your home for bed bugs) and
- you know how to properly mix the product (if a concentrate) and where and how to apply it safely within the home.
- ....
Jon L.Gelman of Wayne NJ, is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson).
Aug 22, 2012
Based on reports from the United States Centers for Disease Control (CDC) arial spraying of pesticides has been mandated in Texas because of the number of reported cases of West Nile Flu. Questions are now being raised ...
Feb 14, 2012
Consistent with an enforcement trend by the EU to reduce agricultural pesticides used by 50% between 2008-2018, a French court on Monday declared U.S. biotech giant Monsanto guilty of chemical poisoning of a French ...
Aug 11, 2010
A US District Court in NJ is allowing a claim of injured agricultural worker to proceed against an employer directly for an intentional tort flowing from a pesticide spraying. The workers, residents of Puerto Rico, were employed ...
Jul 02, 2009
A recent study by the McLaughlin Centre for Population Health Risk Assessment of the University of Ottawa finds that an increased risk of childhood leukemia is associated with the mother's exposure at work to pesticides.
Wednesday, July 11, 2012
Exclusivity Rule Adopted in MDL Aviation Law Case
 |
| Continental Connection Bombarder Q400 operated by Colgan Air Photo Credit: Wikimedia Commons |
The Exclusivity Doctrine bars an employee from filing a claim against his or her employer outside of workers' compensation. There are some limited exceptions to that rule such as intentional actions by the employer such as concealment of medical information and gross negligence. The workers' compensation act in the overwhelming majority of claims supersedes common law actions in tort and is the exclusive remedy for an injured worker against an employer. Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 161 A.2d 479 (1960). Kristiansen v. Morgan et al., 153 N.J. 298, 708 A.2d 1173 (1998).
The Court reasoned that under a New York conflict-of-laws analysis, the State of New Jersey, rather than New York, had a greater interest in the case. since the plaintiff failed to meet the two prong NJ test to circumvent the NJ exclusivity rule, the case was dismissed.
In re Air Crash Near Clarence Center New York on February 12, 2009 v. Colgan Air, Inc., et al., # 09-md-2085, 10CV-10078, 2012 WL 1029530 (W.D.N.Y.) March 26, 2012
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For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.
More on The Exclusivity Rule
Jun 13, 2012
Court Rules Site of Accident Invokes Exclusivity Rule. English: Motor vehicle accident following a ve... A NJ appeals court ruled that a motor vehicle accident cause by a co-worker in the emplyers' parking lot, before work had...
Jun 27, 2012
Willful OSHA Violation Alone Not Enough Alone to Circumvent the Exclusivity Doctrine. "New Jersey's Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.5, provides a prompt and efficient remedy for an employee's ...
Apr 09, 2010
A Federal Judge, who is managing the Multi-District Asbestos Litigation, has ruled that the exclusivity doctrine defeats the application of the dual capacity doctrine where the manufacturer's corporation was merged into the ...
Apr 23, 2012
The Exclusivity Rule: Under the circumstances of this case, which include a finding by the federal Occupational Safety and Health Administration that the accident was the result of a “willful violation” of its regulations, did the ...
Wednesday, August 11, 2010
Intentional Tort Claim Against Employer Proceeds for Pesticide Spraying
A US District Court in NJ is allowing a claim of injured agricultural worker to proceed against an employer directly for an intentional tort flowing from a pesticide spraying.
The workers, residents of Puerto Rico, were employed on a NJ farm harvesting produce. hey were employed to work in fields that the employer recently applied pesticides or was actually spraying the pesticides. Is was alleged that the employer failed to provide medical assistance after the workers became ill and did not provide the employee's physicians with complete with complete information on the [potential pesticide exposure that would have allowed better treatment.
The Court denied the defendant's motion for summary judgement and is allowing the case to be heard.
Montalvo v. Larchmont Farmes, Inc., Civil Action No. 06-2704 (RBK/AMD) 2010 WL 3025045 (D.N.J.) decided July 29, 2010,
Click here to read more about pesticide exposures and workers compensation.
For over 3 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 exposures,
The workers, residents of Puerto Rico, were employed on a NJ farm harvesting produce. hey were employed to work in fields that the employer recently applied pesticides or was actually spraying the pesticides. Is was alleged that the employer failed to provide medical assistance after the workers became ill and did not provide the employee's physicians with complete with complete information on the [potential pesticide exposure that would have allowed better treatment.
The Court denied the defendant's motion for summary judgement and is allowing the case to be heard.
Montalvo v. Larchmont Farmes, Inc., Civil Action No. 06-2704 (RBK/AMD) 2010 WL 3025045 (D.N.J.) decided July 29, 2010,
Click here to read more about pesticide exposures and workers compensation.
For over 3 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 exposures,
Friday, May 30, 2014
Intentional Fraud
All fraud is not actionable in workers' compensation. It is similar to discrimination action actions under the workers' compensation act. There is much talk, but few claims succeed, since they are based upon the element of intent.
This case caught my eye because of David DePaolo's recent blog post highlighting the recent, as David calls it, "Truly Imaginative" behavior of an individual playing two sides of the plot line.
The fraud issue struck a note for me as I have been reviewing cases for an upcoming seminar on workers' compensation issues. The decision of Bellino v Verizon, 2014 WL 10301786 (NJ App Div 2014) is a factual situation that seem to draw the ire of many insurance companies and employers. The injured worker failed to disclose some past medical information during a proceeding. The Court held that the element of intent was not proven.
Cases involving fraud are especially fact sensitive. Rarely does someone play both sides of the story line in perpetrating an intentional workers' compensation fraud scheme. Carlos Perry in West Virginia did so as the US Justice Department reports:
This case caught my eye because of David DePaolo's recent blog post highlighting the recent, as David calls it, "Truly Imaginative" behavior of an individual playing two sides of the plot line.
The fraud issue struck a note for me as I have been reviewing cases for an upcoming seminar on workers' compensation issues. The decision of Bellino v Verizon, 2014 WL 10301786 (NJ App Div 2014) is a factual situation that seem to draw the ire of many insurance companies and employers. The injured worker failed to disclose some past medical information during a proceeding. The Court held that the element of intent was not proven.
Cases involving fraud are especially fact sensitive. Rarely does someone play both sides of the story line in perpetrating an intentional workers' compensation fraud scheme. Carlos Perry in West Virginia did so as the US Justice Department reports:
Knoxville Man Sentenced To Twelve Years Imprisonment For Workers' Compensation Fraud
Carlos Perry Found to Have Defrauded Six Insurance Companies Out of $401,649 in Benefits
May 20, 2014
ABINGDON, VIRGINIA – United States Attorney Timothy J. Heaphy announced today that Carlos Perry, 58, Knoxville, Tenn. was sentenced last week in the United States District Court for the Western District of Virginia in Abingdon to twelve years in federal prison.
Perry was also ordered to pay restitution in the amount of $324,914.70. Perry had previously pleaded guilty to one count of mail fraud.
According to evidence presented at the sentencing and guilty plea hearings by Assistant United States Attorney Zachary T. Lee, between January 2011 and February 2014, Perry developed a scheme in which he defrauded six different insurance companies of workers’ compensation benefits using false business and fictitious employees. An investigation by the United States Secret Service determined that Perry’s scheme entailed Perry impersonating an owner of six fictitious businesses located in Wise, Va., Johnson City, Tenn., Bristol, Va., and Abingdon, Va., in order to obtain workers’ compensation insurance. Perry then filed false injury claims on behalf of the fictitious employees.
According to evidence presented at the sentencing and guilty plea hearings by Assistant United States Attorney Zachary T. Lee, between January 2011 and February 2014, Perry developed a scheme in which he defrauded six different insurance companies of workers’ compensation benefits using false business and fictitious employees. An investigation by the United States Secret Service determined that Perry’s scheme entailed Perry impersonating an owner of six fictitious businesses located in Wise, Va., Johnson City, Tenn., Bristol, Va., and Abingdon, Va., in order to obtain workers’ compensation insurance. Perry then filed false injury claims on behalf of the fictitious employees.
Perry received the checks sent by the insurance companies and impersonated the fictitious employees at doctor’s visits and in communications with the insurance companies. The United States Secret Service discovered that Perry utilized nineteen fictitious identities in the course of his scheme and used the social security numbers of numerous real persons to execute his fraud. On January 29, 2014, Perry was arrested by the United States Secret Service and the United States Marshals Service at a doctor’s office in Kingsport, Tenn., where he was impersonating one of the fictitious employees. As a result of Perry’s scheme, six separate insurance companies sustained a combined loss of $401,649.66.
The investigation of this case was conducted by United States Secret Service, United States Marshals Service, and the Virginia State Police. Assistant United States Attorney Zachary T. Lee is prosecuting the case for the United States.
.........
Wednesday, March 30, 2022
The Risk of Working in a Factory
A Federal Court in NJ has dismissed a civil action for intentional tort brought by an injured worker against the employer.
Saturday, April 5, 2014
EPA Takes Action to Protect Public from an Illegal Nano Silver Pesticide in Food Containers; Cites NJ Company for Selling Food Containers with an Unregistered Pesticide Warns Large Retailers Not to...
The U.S. Environmental Protection Agency has issued an order to the Pathway Investment Corp. of Englewood, New Jersey to stop the sale of plastic food storage containers that have not been tested or registered with the EPA, in violation of federal pesticides law. The company’s Kinetic Go Green Premium Food Storage Containers and Kinetic Smartwist Series Containers both contain nano silver as an active ingredient, and the company markets other products as containing nano silver, which the company claims helps reduce the growth of mold, fungus and bacteria. Such claims can only be made on products that have been properly tested and are registered with the EPA.
“Claims that mold, fungus or bacteria are controlled or destroyed by a particular product must be backed up with testing so that consumers know that the products do what the labels say,” said EPA Regional Administrator Judith A. Enck. “Unless these products are registered with the EPA, consumers have no information about whether the claims are accurate. The EPA will continue to take action against companies making unverified public health claims.”
Some pesticides have been linked to various forms of illnesses in people, ranging from skin and eye irritation to cancer. Some pesticides may also affect the hormone or endocrine systems. In many situations, there are non-chemical methods that will effectively control pests.
Under federal pesticide...
[Click here to see the rest of this post]
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). 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.
Related:
New York City workers have high pesticide exposure
Oct 04, 2013
The findings “underscore the importance of considering pest and pesticide burdens in cities when formulating pesticide use regulations,” the researchers from the city's Department of Health and Mental Hygiene wrote in the ...
http://workers-compensation.blogspot.com/
Intentional Tort Claim Against Employer Proceeds for Pesticide
Aug 11, 2010
A US District Court in NJ is allowing a claim of injured agricultural worker to proceed against an employer directly for an intentional tort flowing from a pesticide spraying. The workers, residents of Puerto Rico, were employed ...
http://workers-compensation.blogspot.com/
Workers' Compensation: Highly hazardous pesticides should be ...
Aug 11, 2013
The tragic incident in Bihar, India, where 23 school children died after eating a school meal contaminated with monocrotophos, is an important reminder to speed up the withdrawal of highly hazardous pesticides from markets ...
http://workers-compensation.blogspot.com/
Saturday, August 11, 2007
NJ Permits Intentional Tort Claim Against Former Employer- PVC Exposure
While denying class action certification for a medical monitoringclass and a punitive damage class, the NJ App Div permitted an INTENTIONAL TORT action against the employer to go forward in a common law civil claim.
This case involved exposure to poly vinyl chloride at a Pantasote, a Paterson NJ plant, causing disease to former workers which is characteristic of Raynaud's phenomenon ( fingers blanch and numbnessand discomfort are experienced upon exposure to the cold), changes inthe bones at the bones at the end of the fingers [Known asacro-osteolysis (AOL)], joint and muscle pain, and scleroderma-likeskin changes (thickening of the skin, deceased elasticity and slightedema).
Inhaled vinyl chloride has been shown to increase the risk of a rareform of liver cancer (angiosarcoma of the liver) in humans. It is classified by the Environmental Protection Agency (EPA) as a Group A, human carcinogen.
Plaintiffs represented by: Jon Gelman (NJ), Ron Simon (DC), Herschel Hobson (TX) and Mark Cuker (PA)
Decision- Buynie v. Airco Co, NJ App Div 2007, Decided August 10, 2007
See related articles:
Misleading Statements Made By Vinyl Chloride Companies Held Valid Basis for Suit
Workplace Poison
Vinyl Chloride Conspiracy Documents: Part 4 (Jun 1974 - Dec 1974)
Vinyl Chloride Plants in New Jersey
This case involved exposure to poly vinyl chloride at a Pantasote, a Paterson NJ plant, causing disease to former workers which is characteristic of Raynaud's phenomenon ( fingers blanch and numbnessand discomfort are experienced upon exposure to the cold), changes inthe bones at the bones at the end of the fingers [Known asacro-osteolysis (AOL)], joint and muscle pain, and scleroderma-likeskin changes (thickening of the skin, deceased elasticity and slightedema).
Inhaled vinyl chloride has been shown to increase the risk of a rareform of liver cancer (angiosarcoma of the liver) in humans. It is classified by the Environmental Protection Agency (EPA) as a Group A, human carcinogen.
Plaintiffs represented by: Jon Gelman (NJ), Ron Simon (DC), Herschel Hobson (TX) and Mark Cuker (PA)
Decision- Buynie v. Airco Co, NJ App Div 2007, Decided August 10, 2007
See related articles:
Misleading Statements Made By Vinyl Chloride Companies Held Valid Basis for Suit
Workplace Poison
Vinyl Chloride Conspiracy Documents: Part 4 (Jun 1974 - Dec 1974)
Vinyl Chloride Plants in New Jersey
Wednesday, April 13, 2022
Injury Caused by Defeated Machine Guard Results in OSHA Fine of $159,522
An employee working at Crystal Finishing Systems Inc.’s aluminum extrusion facility in Weston was hospitalized with serious injuries after being struck by a puller machine while trying to unjam a piece of aluminum.
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