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(c) 2020 Jon L Gelman, All Rights Reserved.

Wednesday, April 3, 2019

Failure to Attend Employer Exam is Not Insubordination

A municipal who failed to attend a workers’ compensation medical appointment scheduled by his employer cannot be charged with subordination. N.J.A.C. 4A:2-2.3(a)(2), N.J.A.C. 2-2.3(a)(12).


The injured worker was scheduled for an evaluation by the workers’ compensation [WC] insurance company long after the carried closed the file. The employee was under the medical of his own physician. Instead of going to the scheduled evaluation the employee went to work on the date of the scheduled exam and was charged with by the employer with insubordination.

Consistent with the employment manual of the public entity-employer, the employee was seeking unauthorized medical treatment with the knowledge and implicit approval of the employer.

The court ruled that there was a lack of evidence to support the charges of either insubordination nor any other sufficient cause for disciplinary action.

In the Matter of Vincent Fiscella Jr., Yownship of Belleville, Department of Public Works, 2019 WL 1422656, (N.J. App. Div. 2019) Decided March 29, 2019
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.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 and its use in other cases is limited. R. 1:36-3. Superior Court of New Jersey, Appellate Division.

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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). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.