Revised NJ TDB Application Published

The NJ Department of Labor and Industry has released a revised application for temporary disability benefits that is both HIPPA (Federal Health Information Portability & Accountability Act) compliant and computer friendly. The application can now be downloaded in PDF format and the completed form may be submitted via fax. The medical certification has been expanded to obtain additional information concerning the claimant's medical condition.

An application for NJ TDB must be filed within 30 days of the beginning of disability. Claimants are now advised that Social Security Disability benefits may be available should the disabling medical condition last more than 1 year.

Click here to read more about temporary disability benefits.

Insurance Carrier Successful in Seeking Medical Reimbursement

An agreement to equally share the responsibility of medical expenses was held enforceable between insurance carriers after an eight year delay in seeking reimbursement.

A 1999 settlement of a workers' compensation contained a stipulation that two insurance carriers would share in the cost of medical expenses. One insurance company would manage the claimant's medical care and would seek reimbursement from the other insurance carrier. Eight years after the settlement the managing insurance carriers, New Jersey Manufacturers Insurance Company (NJM) sent a letter to the other carrier, Scibal, requesting reimbursement of 50% of the costs. By then, the costs had amounted to $570,629.03.

The Court rejected the application of the Doctrine of Equitable Estoppel as a defense because Scibal did not met the burden of proof. "Scibal must show that NJM had "engaged in conduct, either intentionally or under circumstances that induced reliance, and that [Scibal] acted or changed [its] position to [its] detriment." The Court also rejected the application of the Doctrine of Laches because the offending party, Scibal, was not prejudiced by the mere passage of time.

Kathleen Patry v. West Jersey Health Systems, NJ App Div, Dceided 12.0.2009

Workplace Violence Kills 4 in St. Louis

The terrible consequences of workplace violence left 4 people dead and 5 hurt at a St. Louis transformer plant yesterday. A disgruntled employee took a gun to work and opened fired killing his co-workers.

The suspected shooter was identified as plaintiff in a lawsuit filed in 2006 against the administrators of the company retirement plan. The law suit alleged that unreasonable fee were charged in administrating the plan.

While workers' compensation may provide a remedy for some victims and their families, the basic question remains on what can be done to make the workplace safer. What signals existed that this was going to occur and what actions could be taken by an employer  to assist disgruntled workers from "going postal."

All would agree that certain circumstances are difficult to predict. On the other hand, employers and their insurance carriers should be preemptive in their efforts to create a safer workplace. When Congress looks at work place safety it should broaden its vision to include regulatory preventive tactics so that this situation will not occur.

Gelman to Speak on Employment Discrimination Claims

Jon L. Gelman will join a distinguished to panel of attorneys to discuss employment discrimination claims. The  seminar to be presented by the NJ Institute for Continuing Education  will be moderated by David H. Ben-Asher.

Tuesday, March 16, 2010

4:00 PM to 7:30 PM

Pines Manor, Edison

Click here to print paper registration form

As the practice of employment law in New Jersey becomes increasingly complex, other legal fields sometimes intersect with that practice in significant ways. In order to effectively represent clients in discrimination, whistleblower retaliation, contract and similar matters, employment lawyers must have a basic understanding as to the potential influence of legal principles and remedies in fields such as criminal, tax, insurance, labor-management, workers’ compensation, bankruptcy and disability benefits law. A panel of practitioners experienced in those areas will limit their discussion to substantive and practical ways in which their fields affect the handling of employment matters

Labor-Management - Peter L. Frattarelli, Esq. 
How unionized employees’ collective bargaining agreement grievances and arbitration, N.L.R.B. charges and duty of fair representation suits bear upon their discrimination, whistleblower and other employment law claims.

Workers’ Compensation - Jon L. Gelman, Esq. 
When and how compensation claims should be pursued. The synergy between workers’ compensation claims and employment civil actions and their relation to liens and setoffs. Provisions regarding workers’ compensation in settlement and release agreements

Criminal Law - Bruce I. Goldstein, Esq. 
Issues of potential criminal exposure of employees and employers in whistleblower retaliation and other employment matters. Addressing the criminal legal questions which may arise during the conduct of corporate internal investigations. How the rights of the corporation and its employees are vindicated during governmental investigations.

Bankruptcy - Gerald H. Gline, Esq. 
The treatment in bankruptcy of employment contracts and benefits, non-competition agreements and settlements. Handling employment claims against employers which are in bankruptcy or claims by employees who have filed for bankruptcy. When and how employment claims need to be proven in Bankruptcy Court. Collecting employment damage awards when the employer has been discharged in bankruptcy.

Insurance - Barbara A. O’Connell, Esq.
 Types of insurance policies that can provide coverage in an employment case. Coverage and bad faith litigation. Workers’ compensation policies and situations which give rise to the obligation thereunder to pay for the defense and pain and suffering damages in employment cases. Employment Practices Liability Insurance: dealing with deductibles, punitive damage claims, settlements and the selection of defense counsel.

Tax - Sean M. Aylward, Esq.
 Tax considerations in the handling of employment cases and in the negotiation, structuring and tax reporting of settlements. How Internal Revenue Code Section 409A applies to deferred payments.

Disability Benefits - Bonny G. Rafel, Esq. 
Availability and pursuit of short term and long term disability insurance benefits. Definitions of residual disability, pre-disability income and occupation. Provisions related to disability buyout and overhead expense coverage. Pitfalls resulting from severance agreements. The interaction between employees’ claims for disability benefits and their employment law claims and damages, including issues of liens, setoffs and judicial estoppel.

Driving While Distracted Compared to a DUI

A growing momentum is now taking hold that is comparing driving while distracted (DWD) to driving under the influence (DUI). Over 200 pieces of legislation have now been offered nation wide to prohibit such activities.

“People are starting to see it like drunk driving, and that’s the comparison we need to continue to make,” said Steve Farley, an Arizona state representative. The next step will be a determination whether State workers’ compensation law will consider the activity outside the course of employment or mandated by statute as  exclusion from coverage.

The NY Times has reports that 22% of all drivers talk of their phone while driving and DWD accounts for 2,600 deaths per year and 570,000 injuries.

To read more on distracted driving activity and workers’ compensation, click here.

OSHA Moving to Finalize Crystalline Silica Exposure Standard

The Occupational Safety and Health Administration (OSHA) is moving forward on implementing the standard for occupational exposure to silica. Silica has long been considered an occupational hazard. 


Silicosis was one of the enumerated occupational diseases that were universally included into workers' compensation statutes about 40 years after the enactment of the initial model acts were adopted, at the behest of Industry, to avoid civil liability actions. Occupational disease claims continue to be problematic for State compensation systems.


"Crystalline silica is a significant component of the earth's crust, and many workers in a wide range of industries are exposed to it, usually in the form of respirable quartz or, less frequently, cristobalite. Chronic silicosis is a uniquely occupational disease resulting from exposure of employees over long periods of time (10 years or more). Exposure to high levels of respirable crystalline silica causes acute or accelerated forms of silicosis that are ultimately fatal. The current OSHA permissible exposure limit (PEL) for general industry is based on a formula recommended by the American Conference of Governmental Industrial Hygienists (ACGIH) in 1971 (PEL=10mg/cubic meter/(% silica + 2), as respirable dust). The current PEL for construction and maritime (derived from ACGIH's 1962 Threshold Limit Value) is based on particle counting technology, which is considered obsolete. NIOSH and ACGIH recommend 50µg/m3 and 25µg/m3 exposure limits, respectively, for respirable crystalline silica. Both industry and worker groups have recognized that a comprehensive standard for crystalline silica is needed to provide for exposure monitoring, medical surveillance, and worker training. The American Society for Testing and Materials (ASTM) has published a recommended standard for addressing the hazards of crystalline silica. The Building Construction Trades Department of the AFL-CIO has also developed a recommended comprehensive program standard. These standards include provisions for methods of compliance, exposure monitoring, training, and medical surveillance. "


It is anticipated that the Peer Review phase will be completed in January 2010 and that NPRM (Notice of Proposed Rulemaking ) will be completed in July 2010.


The proposed Rules, 29 CFR 1915; 29 CFR 1917; 29 CFR 1918; 29 CFR 1926 (To search for a specific CFR, visit the Code of Federal Regulations.) 

Older Energy Workers Occupationally Ill

A new study reveals that older energy workers suffer a propensity of occupational illnesses. Historically occupational diseases of energy workers were primarily associated with limited radioactive substances.


"The age-standardized prevalence ratio of COPD among DOE workers compared to all NHANES III data was 1.3. Internal analyses found the odds ratio of COPD to range from 1.6 to 3.1 by trade after adjustment for age, race, sex, smoking, and duration of DOE employment. Statistically significant associations were observed for COPD and exposures to asbestos, silica, welding, cement dusts, and some tasks associated with exposures to paints, solvents, and removal of paints."


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