Workers' Compensation: Search results for witness

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Friday, April 23, 2010

Coaching the Witness to Cry on Cue

A recent trial level decision discounted the testimony of the claimant after the trial judge made a finding that the witness had been coached. How do you determine if the witness was coached or merely prepared by his or her attorney in anticipation of testimony? How do you define the fine line between permissible and unethical? What factors are essential in making that finding?

Excellent lawyers spend hours with their clients in advance of testimony. Is it merely to discuss what to wear to court, and what to eat the day before? Sometimes witnesses are so anxious that lawyer needs to calm them down by explaining the routine of trial, the dress code required and the need to get a full night's sleep before the hearing. Sometime there are so many documents and collateral testimony that it is helpful to review them with a client before his or her testimony.

While clients need to know the parameters of what is expected in a judicial proceeding, feeding the answers to a client to mimic like a ventriloquist act is obviously over the line. Telling the client to be honest and accurate as well as responsive is appropriate. The witness needs to know that they shouldn't guess if they don't know an answer to a question.

Attorney's objections made at a hearing can be phrased in such a fashion as to signal or suggest an answer to the witness. That would appear to be coaching is objectionable. Likewise a spectator in the courtroom signaling in a non-verbal manner to a witness could be deemed to be prejudicial error and grounds for a mistrial.

A NJ workers' compensation court characterized coaching when an injured worker started to cry on the witnesses stand, when asked a question as to how he felt. "Overall, the JOC found petitioner's testimony appeared “to be well coached and practiced. [He] cried as if on cue when his counsel asked how he felt.”

Credibility seems to be the essential criteria in judicial witness evaluations. Judges, especially in a non-jury, administrative action, must take all aspects of the conduct and appearance of the witness into consideration. Determining if an individual is making a non-credible, or coached cry, is an extremely difficult call to make. Applying the law to the facts is a difficult enough judicial task. Even if it is only a workers' compensation proceeding, asking judges to make a determination if a cry is "coached" seems to be an extraordinary responsibility.

Valle v I.M.Supermarkets, Docket # a1910-08, NJ App Div 2010. (Decided April 16, 2010)

Click here to read more about witnesses and workers' compensation.

Monday, March 26, 2012

Congress to Hold Hearings on Toxic Cosmetics

The Subcommittee on Health has scheduled a hearing on Tuesday, March 27, 2012, at 10:15 a.m. in room 2322 of the Rayburn House Office Building. The title of the hearing is “Examining the Current State of Cosmetics.” The hearings follow disclosure that various hair products contain formaldehyde, a carcinogen, and that some lipstick contains lead, a neurotoxic substance.

Witness List:

Panel One:

Michael M. Landa, J.D.
Director
Center for Food Safety and Applied Nutrition (CFSAN)
U.S. Food and Drug Administration
Witness Testimony (Truth in Testimony)

Panel Two:

Halyna Breslawec, Ph.D.
Chief Scientist and Executive Vice President for Science
The Personal Care Products Council
Witness Testimony (Truth in Testimony)

Peter Barton Hutt, J.D.
Senior Counsel
Covington and Burling, LLP
Witness Testimony (Truth in Testimony)

Ms. Curran Dandurand
Co-Founder and Chief Executive Officer
Jack Black Skincare
Witness Testimony (Truth in Testimony)

Ms. Debbie May
President and Chief Executive Officer
Wholesale Supplies Plus
Witness Testimony

Michael J. DiBartolomeis, Ph.D, CIH
Chief Occupational Lead
Poisoning Prevention Program & California
Safe Cosmetics Program
California Department of Public Health

Wednesday, June 26, 2024

Fracture of Silicone Breast Implant Held Not to be Compensable

In an unpublished decision, the NJ Appellate Division upheld the dismissal of a workers' compensation claim for the repair of a ruptured breast implant.

Medical Witness Cannot Be An Advocate - Knee Replacement Surgery Authorized

A workers' compensation medical witness is not permitted to be become an advocate. A Judge of Compensation disregarded an insurance company medical witness when the medical expert "crossed the line from being a medical witness to an advocate."

In reaching her decision, Diana Ferriero, Judge of Compensation, rationalized that the insurance company's medical expert by the "convoluted cover letter sent by respondent counsel," along with medical records on the injured worker.

The injured employer suffered two work related accidents as a mechanic for American Airlines. The first accident in to the right knee occurred in July 2004 and resulted in a partial menisectomy and no prolonged sequelae. The worker was symptom free until a second accident in January 2007when he slipped and fell on both knees and hands. The insurance company authorized 28 medical office visits, 15 Hyalgan injections, 14 aspirations and physical therapy for treatment to his right knee. A diagnosis was made by the treating physician and the insurance company refused the injured worker a total knee replacement claiming that the medical condition was unrelated to the 2nd accident of January 2007.

The workers' compensation Judge ordered an independent medical evaluation by a renowned specialist in knee and hip replacements, Mark A, Hartzband of the Hackensack University Medical Center. The judge concluded that, "Dr, Hartzband opined that petitioner's need for a right total knee replacement was directly and causally related to the accident of January 17, 2007."

The court also found that the insurance company's treating physician, who opined that the 2nd accident was unrelated to the need for a knee replacement, was "disingenuous given the contents of his office chart," and reasoned that the insurance company's authorized treating physician did not have an understanding of arthritis and its progression.

The court granted the injured workers' motion for medical treatment, evaluation and scheduling of the right knee replacement, and ordered the payment of temporary medical benefits.

Pepe v. American Airlines, CP No. 2008-5878, NJ DWC 2010), Decided November 11, 2010.

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.

JOHNSON v. CITY & SUBURBAN DELIVERY SYSTEM, DOCKET NO. A–5536–12T4 (NJ App Div 2014)

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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.

Monday, November 11, 2013

Subcommittee on Environment and the Economy will hold a hearing on S. 1009

On Wednesday, November 13, the Subcommittee on Environment and the Economy will hold a hearing on “S. 1009 – The Chemical Safety Improvement Act.”

The subcommittee has held three hearings in the 113th Congress examining the Toxic Substances Control Act (TSCA) including practical effects of its regulatory implementation.

Next week, members will begin examining efforts to reform the statute with a review of S. 1009, the Chemical Safety Improvement Act, bipartisan legislation authored by Sen. David Vitter (R-LA) and the late Sen. Frank Lautenberg (D-NJ).

As part of the ongoing effort to improve chemical safety regulation, the subcommittee will take a thoughtful look at the proposed Senate bill and how it addresses reform of the program.

The Majority Memorandum and witness list is available here. Witness testimony will also be posted at the same link when available.

Monday, January 9, 2012

On-Star To Predict Type & Extent of injuries

Image via WikipediaWorkers' Compensation is all about the results of injuries and new technologies may assist in evaluating claims and expediting treatment and awards. On-Star, the integrated system of General Motors (GM) that provides immediate reporting of accidents has announced that it will taking the next in the future. It will integrate the reporting system with data from the Centers for Disease Control and provide prediction data on the type and extend of injuries.

Expanding internationally, Shanghai OnStar Telematics Service Co., Ltd will officially provide vehicle safety telematics service for the vehicles manufactured and sold by SGM in China. These services will include the Crash Automatic Resort Service, Emergency Rescue, Remote Door Unlock, Turn-By-Turn Navigation and Vehicle Condition Reports, etc.

Click here to read more: GM OnStar will initiate the service of “Injury Prediction”

"The president of the OnStar claimed that: “the Injury Prediction service is a good substitution to the injury description by the vehicle owner who is injured seriously. This technology plays a part of virtual witness in the accident site. What is even more surprising is that the traffic accident and injury information acquired by this service is far more accurate than what is dictated by the witness. It is said that OnStar is going to officially provide this service from next year."

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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 accidents and illnesses.

Thursday, June 8, 2023

Who Decides if an Employee is a Borrowed-Employee

The adjudication of workers’ compensation claims involves one final arbitrator of fact and law, a compensation judge. In a civil action, a judge decides the applicable law, and the jury decides the factual issues. The NJ Supreme Court recently reiterated the jury’s role in the process when it reviewed a matter determining the status of a borrowed employee.

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/

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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
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Author: Workers' Compensation Law (Thomson/West)

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Friday, November 14, 2014

System Fails to Provide Appropriate Care for Non-Catastrophic Injuries

Todays post is authored by Melissa Brown* of the California Bar.

The October issue of the American Journal of Industrial Medicine confirms what our clients have been experiencing since the California legislature began “reforming” medical treatment access in 2003: the system fails to provide appropriate care for non-catastrophic injuries. (See Franklin, G., et al., “Workers’ Compensation: Poor Quality Health Care and the Growing Disability Problem in the United States,” American Journal of Industrial Medicine, October 2014). The reforms, which include reliance on “evidence-based” medicine and utilization review, often results in increased permanent disabilities and a shift of compensation to Social Security, Medicare and other state and federal disability systems.

The authors note a 75% increase in those receiving Social Security Disability benefits for working age people during the period 2000 and 2012. The basis of the inability to work has shifted from cardiovascular to musculoskeletal, arguably injuries that could have been prevented with safer work practices.

Our experience at Fraulob, Brown, Gowen & Snapp is consistent with these findings. Just today, one of our client’s reported that the expert medical evaluator in his case, agreed to by the insurance company, advised him that had his neck surgery been approved when his doctor requested, rather than going through the utilization review process, he would have had less residual disability. This of course does not even address the pain and suffering he endured waiting for approval; pain and suffering which is not paid by workers’ compensation.

The only way to change this system is through legislation. Which means that people need to vote and need to make it their mission to contact their legislators and the governor with their horror stories.

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*Melissa C. Brown is a frequent lecturer at legal conventions and seminars. Ms. Brown has been recognized in America’s Top Attorneys for over 20 years. She has studied Mediation at the World Intellectual Property Organization in Geneva, Switzerland.

Ms. Brown is a certified specialist in Workers’ Compensation as well as a national expert on Social Security Disability , Elder Law, Health Care Planning and decision-making. She is a law professor and published author.

Her practice includes serving as a court appointed and agreed upon Arbitrator for Workers’ Compensation matters. Her legal treatise, Advising the Elderly or Disabled Client, is utilized by law schools throughout America as well as Elder Law, Disability and Personal Injury attorneys. She been retained as an expert witness by the NFL Players association regarding compensation for brain and other serious injuries sustained by professional athletes.

Wednesday, May 1, 2019

Federal opioid limitations: Good intentions, bad outcomes

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

Senate Republicans and Democrats, including Presidential candidate Kirsten Gillibrand, have introduced legislation that would limit opioid prescriptions to a set number of days and limit refills. In my view such legislation would negatively impact people who were injured on the job.

I mostly agree with analysis of the legislation that was recently published in Rewire. One size fits all solutions don’t account for the needs of patients with chronic pain. Recently authors of the Centers for Disease Control guidelines for opioid prescriptions have stated that those guidelines have been misused to arbitrarily limit opioid prescriptions for pain management.

As a practical matter, in my experience prescriptions for opioids are already severely limited for injured workers. Statutory limits on opioids are a good excuse for insurers and self-insureds to wash their hands of future medical care obligations under workers compensation.

Opioid prescription limitations have other effects. Pain doctors who don’t prescribe opioids have more time to perform procedures. Procedures are more profitable for doctors and increase cost. Primary care doctors are often reluctant to prescribe opioids which puts more pressure on pain management doctors.

There are alternatives to opioids for pain management. Stem cell therapy has shown promise in treating pain. But insurers are reluctant to approve those options as that could increase costs for them and leave medical claims under workers’ compensation open.

I believe that opioid prescription monitoring is a better solution to fighting addiction than prescription limits. Those systems can flag potential problem users and get them help. In the case of someone hurt on the job who develops an addiction to pain medication, treatment for that addiction could be covered by workers compensation.

Massachusetts also developed what amounts to a drug court for opioids within their workers’ compensation court. Problem solving courts, like drug courts, are being increasingly used to help those with substance use issues in the criminal justice system. Massachusetts has adopted the idea in an administrative setting. Federal limits on opioid prescriptions would run counter to innovative programs put in place at a state and local level.

Workers compensation laws developed in the early 20th century when workplace safety laws could only be constitutionally enacted through state police powers under the 10th Amendment. Constitutional law evolved changed during the New Deal era which gave Congress broader regulatory powers over workplace safety and the economy in general.

As a result of the broadening of federal regulatory powers, federal laws limiting opioid prescriptions would likely be constitutional even if they interfered with innovative state programs like Massachusetts workers’ compensation opioid court. While the federal government seems to feel compelled to undercut state workers compensation laws to the detriment of workers, the federal government has given up on oversight of state workers compensation laws that could benefit workers.

The United States Department of Labor monitored state workers compensation laws as result of recommendations from the National Commission on State Workers Compensation Laws.The Commission set up 18 standards for state laws. The DOL stopped overseeing state workers compensation laws in 2004.

In 2015 several Senators and Congressional members, including then and current Presidential candidate, Vermont Senator Bernie Sanders, wrote to the Secretary of Labor about reinstating federal oversight of state workers compensation laws. Reporting by Pro Publica highlighted the shortcomings of state workers’ compensation laws The Department of Labor has made no progress on federal oversight of state workers’ compensation laws since then.

Sunday, August 11, 2013

Plaintiffs’ expert says lead paint abatement could cost $1.4 billion

Today's post was shared by Legal Newsline and comes from legalnewsline.com

Kleinberg

Research director Dr. David Jacobs of the National Center for Healthy Housing and an authority in abatement procedures testified for plaintiffs Thursday that the cost of a lead paint abatement program could exceed $1.4 billion in the 10 California jurisdictions pursuing a “public nuisance” case against paint manufacturers.

The trial taking place in Santa Clara County Superior Court Judge James Kleinberg’s court is now into its fourth week. The case is expected to continue next week when plaintiffs introduce their last witness and defendants take the stand to argue that no public health threat exists, and that for what little exposure does exist in California, lead paint is not the primary source.

The plaintiffs, including Los Angeles and Santa Clara Counties and the cities of San Diego and San Francisco, are asking one time lead paint and pigment manufacturers to pay for the abatement costs of eliminating lead paint from homes to protect public health. Defendants NL Industries, the Sherwin-Williams Company, ConAgra Grocery Products, DuPont and Atlantic Richfield Company (ARCO), claim the suit is without merit, that blood lead levels in California are close to zero and that other exposures, such as gasoline, are more likely to elevate blood lead levels than lead paint.

World TB Day — March 24, 2015

Workers who suffer from work-related tuberculosis maybe entitled to benefits under the NJ Workers' Compensation Act. The increased risk for occupational exposure to tuberculosis (TB) is recognized among health care and other workers exposed to persons with active TB and workers exposed to silica or other agents that increase the progression from latent to active TB. CDC Proportionate Mortality from Pulmonary Tuberculosis Associated With Occupations—28 States, 1979–1990. MMWR 1995; Vol. 44/No. 1:14-19.

A worker who was said to have had a pre-existing dormant tuberculosis was permitted to recover workers' compensation benefits as a result of working in an atmosphere containing impurities which were said to have reactivated the tuberculosis condition. Dawson v. E. J. Brooks & Co., 134 N.J.L. 94, 45 A.2d 892 (1946).

Where a 42 year-old worker was required to operate a rapidly propelled grinding wheel and was exposed to dust from the operation, recovery for the aggravation of a “pre-existing latent tuberculosis” was allowed. The medical witness asserted that the grinding wheel produced an excessive amount of dust which, in turn, caused a severe bronchitis resulting in irritation of the lung tissues and increased coughing, causing an aggravation of the underlying tuberculosis. Reynolds v. General Motors Corporation, 38 N.J.Super. 274, 118 A.2d 724 (Co.1955), aff'd 40 N.J.Super. 484, 123 A.2d 555 (App.Div.1956).

A foundry worker who suffered silicosis in the course of his employment as a molder was permitted recovery based upon the theory that the silicosis aggravated the petitioner's dormant tuberculosis condition. Masko v. Barnett Foundry & Machine Co., 53 N.J.Super. 414, 147 A.2d 579 (App.Div.1959), certif. denied 29 N.J. 464, 149 A.2d 859 (1959).

An individual working in a ribbon factory who was exposed to dust and fumes from carbon paper, teletype, and typewriter ribbons was permitted to recover disability as a result of the activation of an underlying tuberculosis condition by the dust and fumes. Bond v. Rose Ribbon & Carbon Mfg. Co., 78 N.J.Super. 505, 189 A.2d 459 (App.Div.1963), certif. granted 40 N.J. 499, 193 A.2d 137 (1963), aff'd 42 N.J. 308, 200 A.2d 322 (1964).

Each year, World TB Day is observed on March 24. This annual event commemorates the date in 1882 when Robert Koch announced his discovery of Mycobacterium tuberculosis, the bacterium that causes tuberculosis (TB). World TB Day provides an opportunity to raise awareness about TB-related problems and solutions and to support worldwide TB control efforts.

For the second year, CDC supports the theme "Find TB. Treat TB. Working together to eliminate TB." Health officials in local and state TB programs are encouraged to provide educational awareness regarding TB to their communities and to work with other agencies and organizations that care for those most at risk for TB.

In 2014, a total of 9,412 new cases of TB were reported in the United States, a rate of 3.0 per 100,000 population (1). Although the total number of TB cases continues to decline, 2014 showed the smallest decline in incidence in over a decade. Nationally, TB still persists at greater incidence in foreign-born persons and racial or ethnic minorities.

CDC is committed to a world free from TB. Initiatives to improve awareness, testing, and treatment of latent TB infection and TB disease among groups at high risk are critical to achieve elimination of TB in the United States.

Additional information regarding World TB Day and CDC's TB elimination activities is available at http://www.cdc.gov/tb/events/worldtbday.

Reference

1) Scott C, Kirking HL, Jeffries C, Price SF, Pratt R. Tuberculosis trends—United States, 2014. MMWR Morb Mortal Wkly Rep 2015;64:265–9

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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.

Saturday, November 30, 2013

Court Holds a Misstatement Does Not Bar Compensability

Despite the fact that eight injured worker made a misstatement at the time of his testimony, tan Appellate Court affirmed an award for compensability. The court held that the employee's testimony was indeed credible, and supported a claim for Worker's Compensation benefits. The trial court found that the injured worker was easily confused, and was just a poor witness because he was a very unsophisticated, uneducated individual and he had difficulty with questions being presented to him for trial counsel for the employer.

Hernandez v Ebby's Landscapping
2013 WL 6096529 (N.J.Super.A.D.)
Decided November 21, 2013
An unpublished opinion
Rustine Tilton, Esq., attorney for the Appellant-Employer
Richard J. Riordan, Esq (John J. Jasienieck, Esq. on the brief) , attorney for the Respondent-Employee

Tuesday, July 30, 2024

Insurance Snafu Leaves Trucking Company on the Hook

A New Jersey appellate court held that an insurance company failed to terminate coverage properly, and the injured worker was classified as a special employee.

Judicial Limitations in Workers’ Compensation Cases

Frequently a workers’ compensation hearing officer divides a litigated matter into two phases, compensability and damages so litigation can be conducted in a more efficient manner. The procedure is designated as bifurcation and the limitations imposed by the procedure must have carefully adhered to while the adjudicating the claim.

A New Jersey appellate court recently ruled, in an unpublished opinion[1], that a judge of compensation committed reversible error by exceeding the constraints of the bifurcation process. The hearing officer decided the compensability of a denied accident and then went further by awarding damages by way of granting an award for the temporary disability.

An injured worker claimed that he suffered an accident during his employment because of carrying a heavy package at the employer’s place of business. The accident was reported by “text message” and voice message” after he had left the place of employment and returned home. The court assessed the witnesses’ credibility while testifying and determined the injured worker to be credible.

At the time of the trial, the employer relied on a written note from the injured worker’s doctor that stated, the worker “was shoveling snow and developed severe low back pain with right leg radiation.” The attorney for the employer failed to call the doctor as a witness during the trial. The appellate court held that the judge of compensation could give the written note whatever weight it wished to do so, and upheld the finding of the workers’ compensation hearing officials ruling that the matter was compensable and then, despite the bifurcation of the trial, entered an award for temporary disability benefits.

In a collateral issue raised on appeal, prior to making the determination, the judge of compensation, on her own volition sought and relied on additional factual information from the State of New Jersey. She “contacted the State and was advised” that the injured worker had been paid temporary disability benefits” for a certain period. The reviewing appellate tribunal rule that “Judges should not conduct their own factual investigation, let alone do so without notice and an opportunity for the parties to be heard. See Lazovitz v. Bd. of Adjustment, Berkeley Heights, 213 N.J. Super. 376, 381-82 (App. Div. 1986); Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960).” and deemed such action as inappropriate, but vacated the Order for other reasons.

Interestingly, whether a Judge could take “judicial notice” of temporary disability payments was not discussed. “Judicial notice” is a rule of law in evidence that allows a fact to be introduced into evidence if the truth is so authoritatively attested that it cannot be reasonably contested. The NJ Division of Workers’ Compensation normally cross-matches payment information of State temporary disability benefits to efficiently satisfy statutorily imposed liens and eliminate duplicate recoveries. "Administrative procedures are in place for avoiding duplication of benefits in cases where claimants have pursued temporary disability benefits under both the Temporary Disability Benefits Law (TDBL) and the New Jersey Workers' Compensation Act (WCA)." Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 17.10.50. Temporary disability liens–non–duplication of benefits (Thomson-Reuters 2018).

The award of temporary disability benefits was reversed by the appellate division and the matter was remanded to the Division of Workers’ Compensation for further hearing on that issue. The court held, “Despite bifurcation, the judge found that Moran was entitled to temporary disability benefits and appears to have made other findings of the nature of the injury. These other issues were decided without warning and deprived Cosmetic of an opportunity to present evidence or to confront the evidence upon which the judge relied. Because the judge mistakenly exceeded the limits of the bifurcation agreement, we vacate those parts of the order under review that granted temporary disability benefits and other relief to Moran, and we remand those proceedings that would naturally have followed the determination that Moran sustained a work-related injury.”

While bifurcation allows for judicial efficiency, the constraints imposed by procedure need to be strictly followed.

Moran v. Cosmetic Essence, LLC, Docket No. A-2588-1671 (N.J. App. Div. 2018) Decided March 14, 2018. 2018 WL 1308857 Only the Westlaw citation is currently available.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).

[1] NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Sunday, April 27, 2014

Presidential Proclamation -- Workers Memorial Day, 2014

WORKERS MEMORIAL DAY, 2014

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BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

America is built on the promise of opportunity. We believe that everyone should have a chance to succeed, that what matters is the strength of our work ethic, the scope of our dreams, and our willingness to take responsibility for ourselves and each other. Yet each year, workplace illness and injury threaten that promise for millions of Americans, and even more tragically, thousands die on the job. This is unacceptable. On Workers Memorial Day, we honor those we have lost, and in their memory, affirm everyone's right to a safe workplace.

With grit and determination, the American labor force has propelled our Nation through times of hardship and war, and it laid the foundation for tremendous economic growth. Workers risked life and limb to turn the gears of the Industrial Revolution, raise our first skyscrapers, and lay railroad track that connected our country from coast to coast. The injured, as well as families of the dead, received little or no compensation.

It was only after decades of organizing, unionizing, and public pressure that workers won many of the rights we take for granted today. Finally, with the Occupational Safety and Health Act of 1970, the Federal Government required employers to provide basic safety equipment. Just 1 year prior, the Federal Coal Mine Health and Safety Act of 1969 established comprehensive safety and health standards for coal mines, increased Federal enforcement powers, and provided compensation to miners with black lung.

My Administration remains dedicated to building on this progress. We are improving standards to protect workers from black lung and reduce their exposure to dangerous substances. We are helping employers provide safe workplaces and holding those who risk workers' lives and health accountable. And we are empowering workers with information so they can stay safe on the job.

We must never accept that injury, illness, or death is the cost of doing business. Workers are the backbone of our economy, and no one's prosperity should come at the expense of their safety. Today, let us celebrate our workers by upholding their basic right to clock out and return home at the end of each shift.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 28, 2014, as Workers Memorial Day. I call upon all Americans to participate in ceremonies and activities in memory of those killed or injured due to unsafe working conditions.

IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fifth day of April, in the year of our Lord two thousand fourteen, and of the Independence of the United States of America the two hundred and thirty-eighth.

BARACK OBAMA

Saturday, January 29, 2022

Another Hurdle to Prove an Occupational Disease Claim

An attempt to restrict the admission of scientific evidence has been proposed on the Federal level. Even though states have maintained their independence for the most part on this issue, the suggested changes signal an emerging national effort to restrict further the admissibility of scientific evidence that may trickle down to the state judicial systems.

Administrative Rules in Workers’ Compensation May Not Infringe Upon The Right to Due Process Court Holds

The right to cross examination medical experts, in a bifurcated claim cannot be extinguished by administrative rules, according to a decision rendered by a NJ Appellate Court.

A total disability claim involving the Second Injury Fund [SIF] was the subject of a bifurcated trial. At the first phase of the trial only the injured party and employer participated. After hearing the matter ,including medical evidence, a total disability award was entered.

In the second phase the trial court heard testimony as to allocation of the award between the employer the SIF. The barred the re-introduction of additional testimony from the injured workers’ medical expert. The SIF objected and on appeal prevailed.

The Court stated, “… administrative regulations cannot be ‘construed to infringe upon the substantive rights of either party’…..the employer's ‘fundamental right to due process which includes the right to present and cross[-]examine a witness, must be respected.’"

Nisivoccia v. County of Essex, et al., Docket No.. A-1864-07T21864-07T2, 2009 WL 2589480 (N.J.App. Div. 2009)

Wednesday, July 6, 2022

New Laws in NJ Are a Step to Reduce Gun Violence in the Workplace

Gun violence in the workplace continues to be a significant occupational hazard. Whether it occurs on the work premises or carriers over to an off-premises location, gun violence remains a continuing risk associated with a job,

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