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Saturday, December 14, 2019

Top NJ Workers' Compensation Decisions of 2019

It has been an active 2019 for workers’ compensation decisions in New Jersey. There have been two NJ Supreme Court opinions and three reported Appellate Court opinions that are noteworthy. From a review of the pending docket the NJ Supreme Court will be reviewing at least 3 very significant issues in 2020 invoking workers’ compensation issues.


NJ Supreme Court

1. Medical Treatment is an Exclusive Remedy Not a Reasonable Accommodation

The NJ Supreme Court has held that the provision of medical treatment does not equate to a "reasonable accommodation", therefore an employee cannot claim under the Law Against Discrimination [LAD] that failure to provide medical care was actionable. The provision of medical treatment is an exclusive remedy of the Workers’ Compensation Act.
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2. An Unpaid Volunteer Firefighter Is Entitled to NJ Workers’ Compensation Temporary Benefits

The NJ Supreme Court unanimously held that an unpaid and unemployed volunteered firefighter was entitled to temporary workers’ compensation benefits. The Court, in reversing both the Trial and Appellate rulings, declared that volunteer firefighters have been conferred special status by the New Jersey legislature and they should be paid temporary disability benefits at the maximum rate without a seven-day waiting period, even if the injured volunteer firefighter was not holding outside employment at the time of the work-related injury.
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NJ Appellate Division (Published Decisions)

1. Employment Relationship Essential Criteria for Jurisdiction

Petitioner, a New Jersey resident, sought benefits under the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -128, alleging injuries both as the result of a specific incident, and occupational injuries "while performing repetitive duties" as an aircraft technician while employed by United Airlines at the airport in Philadelphia. The judge of compensation dismissed both petitions for lack of jurisdiction.
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2. Correct Way to Contest a Lien

Attorneys should follow the correct procedures to contest a lien asserted by a workers’ compensation insurance carrier. A recent case provides instructions on the appropriate techniques.
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3. Court Has Discretion to Award Counsel Fee Based on Dependent's Life Expectancy

After awarding dependent benefits under N.J.S.A. 34:15-13 to the surviving spouse of a worker who succumbed to an occupational disease, the judge of compensation awarded counsel fees based on the spouse's expected lifetime – in accordance with a 1995 amendment to N.J.S.A. 34:15-13(j) which provided that compensation shall be paid to a surviving spouse "during the entire period of survivorship" – as determined from the table of mortality and life expectancy printed as Appendix I to the New Jersey Rules of Court.
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Cases to Watch in 2020 - Pending in NJ Supreme Court

1.NJ Supreme Court to Review Application of Exclusivity Rule Between Social Remedial Legislation Acts

The NJ Supreme Court will review two social remedial legislative acts to determine whether the Exclusivity Rule is applicable. The workplace legislation is the Law Against Discrimination [LAD] and the Workers’ Compensation Act [WCA]. The Court will determine whether a LAD claim is barred by the exclusive remedy of the WCA. Mary Richter, Plaintiff-Respondent, v. Oakland Board of Education, C-234 Sept.Term 2019, 2019 WL 5847242, Petition for Certification Granted NOVEMBER 4, 2019
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A-23-19 Mary Richter v. Oakland Board of Education (083273)
Is an employee alleging discrimination for failure to accommodate a disability, pursuant to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, required to show an adverse employment action; and is this employee’s claim barred by the exclusive remedy provision of the Workers’ Compensation Act, N.J.S.A. 34:15-1 to -146?
Certification granted: 11/04/2019
Posted: 11/04/2019

2. Six-Year Statute of Limitations Governs Medical Claims

In a landmark decision the NJ Court of Appeals held that medical provider claims for expenses in workers’ compensation claims are subject to a contractual six-year statute of limitations. The ruling will have a major impact upon the overburdened state’s Division of Workers’ Compensation (NJDWC) system.
The NJDWC is already recognizing a soaring number of medical expense disputes and it lacks a standardized adjudication process. The Legislature should establish a medical fee schedule and create a separate alternate dispute resolution (ADR) system to adjudicate the medical provider claims.
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A-78/79/80-18 The Plastic Surgery Center, PA v. Malouf Chevrolet-Cadillac, Inc. (082502)
Does the two-year statute of limitations, applicable to claims under the Workers’ Compensation Act, apply to claims by medical providers for the payment of services rendered to injured employees?
Certification granted: 05/14/2019
Posted: 05/15/2019

3. Medical Reimbursement to Insurance Carrier

A-68-18 New Jersey Transit Corporation v. Sandra Sanchez and Chad Smith (082292)
Can plaintiff, a workers’ compensation carrier, obtain reimbursement of medical expenses and wage loss benefits it paid from defendants (more specifically, the tortfeasors who negligently caused injuries to plaintiff’s employee in a work-related motor vehicle accident), if the employee would be barred from recovering non-economic damages from defendants because he did not suffer a permanent injury?
Certification granted: 04/04/2019
Posted: 04/05/2019

…. 
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.

Argued: 09/24/2019






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