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.
Showing posts with label Appellate court. Show all posts
Showing posts with label Appellate court. Show all posts
Saturday, December 14, 2019
Thursday, July 31, 2014
N.J. family denied workers' comp after mother died following 10 hours behind desk, high court rules
| The state Supreme Court today ruled that the husband of an AT&T manager who died from a blood clot after sitting at her desk for more than 10 hours one night is not entitled to workers' compensation benefits, overturning a decision by a lower court. Cathleen Renner, a mother of three, died in 2007 at age 47 from a clot in her lung about an hour after she finished working a sedentary, overnight shift at the computer in her home office in Edison, the ruling said. In 2011, a state appellate court upheld a lower judge's decision that Renner's condition — known as a pulmonary embolism — was caused by her work and that her husband, James, was entitled to benefits under New Jersey's workers' compensation law. Experts said the case of was the first of its kind that they can recall. But the Supreme Court voted 5-0 today to reverse that ruling, saying there wasn't enough evidence to prove Renner's work was to blame. "Cathleen read, took telephone calls, sent and received, emails, had conferences with her superiors and co-workers, and made decisions," wrote Judge Ariel A. Rodriguez, who is temporarily sitting on the court to fill a vacancy. "These responsibilities did not require her to remain in a seated position for long, uninterrupted stretches of time." Marty Richter, a spokesman... |
….
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.
Wednesday, January 29, 2014
Judge Disqualified over Facebook ‘Friend’ Request
Back in February, the American Bar Association cautioned judges about their use of social media. While sites like Facebook and Twitter can help judges stay in touch with the wider world, the ABA admonished that they should think twice before “friending,” “liking,” or “following” somebody.
A case in Florida drives home that concern.
The dispute centers around a circuit court judge who presided over a divorce proceeding. Before entering a final judgment, Judge Linda D. Schoonover sent the wife a Facebook “friend” request that the woman didn’t accept, according to court documents. In a complaint, the lawyer for the wife accused the judge of then retaliating against her by allegedly saddling her with “most of the marital debt” and giving the husband “a disproportionately excessive alimony award.”
Last week, an appellate court kicked the judge off the case and assigned the matter to a different judge, concluding that the wife had a “well-founded fear of not receiving a fair and impartial trial.”
The unrequited friend request “placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the ‘friend’ request,” the appeals court wrote in its Jan. 24 decision. (Chicago intellectual property attorney Evan Brown, who blogs about...
[Click here to see the rest of this post]
Saturday, December 28, 2013
Court Holds OSHA HazCom Standard Not A Bar To State Failure to Warn Claims
The US Court of Appeals for the District of Columbia has held that The Occupational Safety and Health Administration’s (OSHA) HazCom Standard does not preempt state law, therefore allowing state lawsuits to go forward based on “failure to warn” claims.
The Court dismissed the Petition filed by the American Tort Reform Association for a definitive determination concerning Federal preemption of state court based actions. The case overrules an unpublished NJ Appellate Court decision dismissing a state based claim for “failure to warn.” Bass v. AirProducts & Chemicals Inc., et al., Docket No. A-4542-03T3, 2006 WL 1419375, May 25, 2006 (N.J. Superior A.D.), NJ Supreme Court denied certification, 907 A.2d 1014, Sept. 8, 2006.
The Court reasoned that the petition for review was, “….much to do about nothing.” The Court held, that while OSHA had no authority to issue an authoritative statement, OSHA could issue an interpretative statement that is not subject to notice and comment rulemaking under the Administrative Procedures Act (APA) 5 U.S.C. § 553(b).
The HazCom Standard establishes labeling requirements for chemicals used in the workplace. 29 C.F.R. § 1910.1200(a)(2).
American Tort Reform Association v. OSHA, et al., Docket No. 12-1229 (2013 D.C. Cir.) Decided: December 27, 2013.
The Court dismissed the Petition filed by the American Tort Reform Association for a definitive determination concerning Federal preemption of state court based actions. The case overrules an unpublished NJ Appellate Court decision dismissing a state based claim for “failure to warn.” Bass v. AirProducts & Chemicals Inc., et al., Docket No. A-4542-03T3, 2006 WL 1419375, May 25, 2006 (N.J. Superior A.D.), NJ Supreme Court denied certification, 907 A.2d 1014, Sept. 8, 2006.
The Court reasoned that the petition for review was, “….much to do about nothing.” The Court held, that while OSHA had no authority to issue an authoritative statement, OSHA could issue an interpretative statement that is not subject to notice and comment rulemaking under the Administrative Procedures Act (APA) 5 U.S.C. § 553(b).
The HazCom Standard establishes labeling requirements for chemicals used in the workplace. 29 C.F.R. § 1910.1200(a)(2).
American Tort Reform Association v. OSHA, et al., Docket No. 12-1229 (2013 D.C. Cir.) Decided: December 27, 2013.
Thursday, December 19, 2013
O Canada! Ecuadorians Win Right to Pursue Chevron North of the Border
Here’s an interesting quirk of big litigation that may hit a multinational company: A plaintiff can try to enforce a favorable judgment in just about any country in which the defendant has significant assets.
That can create a few headaches for defendants, who might have to chase a plaintiff from Cambodia to Chad to China to keep its assets from being seized.
Chevron Corp. on Tuesday got a tough reminder of this lesson, when an appellate court in Canada ruled that winners of a $9.5 billion judgment against the oil giant in Ecuador could try to recover the assets in the Great White North.
Writes the WSJ’s Dan Gilbert:
The plaintiffs, residents of Ecuador’s jungles, are seeking to enforce a 2011 judgment against Chevron by confiscating its properties in other countries where it operates. In May, a lower court in Ontario held that the Ecuadorean judgment didn’t apply to Chevron subsidiaries like the one that owns its assets in Canada, halting the plaintiffs’ lawsuit against the company there.
The Court of Appeal in Ontario reversed the lower court’s ruling.
At points in its opinion, the panel seemed put out by Chevron’s litigation tactics.
“For 20 years, Chevron has contested the legal proceedings of every court involved in this litigation – in...
[Click here to see the rest of this post]
Wednesday, December 4, 2013
Constitutional Challenges New and Old, From Florida to Oklahoma
Today's post highlights the slow and tedious battle a contitutional challenge is to a workers' compensation issue. It is shared from flojcc.blogspot.com.
There is a value to consistency and predictability in the law. Attorneys rely upon the decisions of courts to form opinions about their cases. Attorneys with a clear understanding of their state's statutes, and the interpretations which appellate courts will apply to them, are in an admirable position to provide their clients with predictions and advice regarding their specific case and its issues. In Florida, this can take time. Sometimes such specifics can take many years. In 1993, the Florida Legislature made significant changes to the Florida Workers' Compensation law. Among these was a marked reduction in the quantum of temporary total disability benefits available, from 260 weeks to to 104 weeks. A panel of the Florida First District Court of Appeal ("First DCA") concluded on February 28, 2013 that this statutory change was Unconstitutional. Westphal v. St. Petersburg. (1D12-3563)On September 23, 2013, the Court granted en banc review. This means that the entire First DCA reconsidered the case and issued a new opinion. In this second iteration, a majority of the Court concluded that the 104 week limitation on temporary total disability (TTD) did apply to the claimant, Mr. Westphal. The en banc decision did not find Constitutional infirmity in the statute, as the panel had months earlier....
|
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
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
Thursday, November 21, 2013
Occupational pulmonary case dismissed by court for lack of evidence
A New Jersey Appellate Court dismissed an occupational pulmonary claim for lack of credible evidence. The court reversed an award of 5% permanent partial pulmonary disability of a claim filed by employee loaded and unloaded baggage for US Airways.
In its decision, the court found that there was a lack of credible evidence proving both exposure as well as medical findings and factual evidence that would be able to meet the criteria to establish a claim for an occupational disability. The worker alleges that between 1987 and 2008 he worked in areas that lacked ventilation and there was an exposure to two fumes.
The petitioner testified that his condition did not affect his ability to work and that he was able to volunteer for overtime work. Over the 10 years that the claimant worked for the employer he did not report a condition to his employer, did not seek medical treatment from an allergist or a pulmonologist.
Furthermore, the medical expert who testified on behalf of of the petitioner, Dr. Malcolm Hermele, relied only upon x-ray findings demonstrating"Increased interstitial markings," and pulmonary function testing. There were no clinical signs by way of wheezing, rales or rhonchi.
Respondents medical expert, Dr. Benjamin Saperstein, reported that the physical examination of the petitioner was "perfectly normal." Dr. Saperstein also testified that Dr. Hermele’s X-ray was of poor quality.
In reviewing the record below, the appellate tribunal, concluded that the judges decision below lacked credible findings to sustain a claim for Workers’ Compensation benefits. The court focused upon the statutory authority of N.J.S.A. 34:15-36 that defines permanent disability and quality impartially character."Injuries such as minor lacerations, minor contusions, minor springs, and scars which do not constitute significant disfigurement, an occupational disease of the minor nature such as mild dermatitis and mild bronchitis show not constitute permanent disability within the meaning of this definition.”
The court relied upon the sentinel case of Fiore v. Consolidated Freightways, 140 NJ 452, 470 (1995) we're in the New Jersey Supreme Court interpret the occupational disease definition as established under N.J.S.A. 34:15-31, as "designated to compensate "diseases arising out of the workplace, and not the ordinary diseases of life.”
Anthony DiFrabrizio v US Airways, ___A.3d___, 2013 WL 601534 (NJ App. Div. 2013) docket number 8-1497-12T4
Andrea Graf, Esq. (Appellant-US Airways)
Ricky E. Bagolie, Eq. (Appellant-Anthony DiFrabrizio)
….
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.
Wednesday, October 9, 2013
Federal Court Deems CMS Interpretation of the MSP Act Impenetrable
A UD District Court has denied a health provider's challenge to CMS's interpretation of the to the Medicare Secondary Act. CMS's formula for reimbursement was upheld.
"The Court finds this line of argument unpersuasive for several reasons. Most significantly, Allina's heavy reliance on the above-cited cases is unavailing because none of those decisions directly dealt with the precise issue before this Court–i.e., the phrase “entitled to benefits under Part A.” Rather, all of those courts were called upon to interpret the other component of the Medicaid fraction's numerator–the requirement that patients be “eligible” for Medicaid. For this very reason, our Court of Appeals “declined to follow” those same cases, characterizing those courts' discussion of the phrase “entitled to benefits” as dicta. Northeast Hosp., 657 F.3d at 12 n.7. This Court agrees with that assessment and follows the lead of our Circuit. Those decisions do not lend any meaningful support to Allina's arguments here. Moreover, the D.C. Circuit has rejected the substance of this “eligible” versus “entitled” argument as unpersuasive in any event, observing in Northeast Hospital that “the fact that the DSH factions speak of ‘eligibility’ for Medicaid but ‘entitlement’ to Medicare” was not “enlightening.” Id. at 12. Instead, as the Circuit went on to state, “the Secretary's interpretation of ‘entitled’ as ‘meeting the statutory criteria for entitlement’ ... does not actually collapse the terms.” Id. (explaining that an individual could be “ ‘eligible’ for, but not ‘entitled’ to, Part A benefits because one has not yet ‘enrolled’ in the program”). This Court concurs. The Secretary's reading of the statute at issue here does not equate these two terms, and Allina's insistence otherwise lacks merit."
"The Court finds this line of argument unpersuasive for several reasons. Most significantly, Allina's heavy reliance on the above-cited cases is unavailing because none of those decisions directly dealt with the precise issue before this Court–i.e., the phrase “entitled to benefits under Part A.” Rather, all of those courts were called upon to interpret the other component of the Medicaid fraction's numerator–the requirement that patients be “eligible” for Medicaid. For this very reason, our Court of Appeals “declined to follow” those same cases, characterizing those courts' discussion of the phrase “entitled to benefits” as dicta. Northeast Hosp., 657 F.3d at 12 n.7. This Court agrees with that assessment and follows the lead of our Circuit. Those decisions do not lend any meaningful support to Allina's arguments here. Moreover, the D.C. Circuit has rejected the substance of this “eligible” versus “entitled” argument as unpersuasive in any event, observing in Northeast Hospital that “the fact that the DSH factions speak of ‘eligibility’ for Medicaid but ‘entitlement’ to Medicare” was not “enlightening.” Id. at 12. Instead, as the Circuit went on to state, “the Secretary's interpretation of ‘entitled’ as ‘meeting the statutory criteria for entitlement’ ... does not actually collapse the terms.” Id. (explaining that an individual could be “ ‘eligible’ for, but not ‘entitled’ to, Part A benefits because one has not yet ‘enrolled’ in the program”). This Court concurs. The Secretary's reading of the statute at issue here does not equate these two terms, and Allina's insistence otherwise lacks merit."
Allina Health System v. Sebelius,
--- F.Supp.2d ----, 2013 WL 5530609, D.D.C., October 08, 2013 (NO. 09-CV-1889 (RLW))
Thursday, February 16, 2012
Counsel Fees Awarded Against An Employer Who Failed to Pay Timely
A NJ Appellate Court has ordered that an employer must pay counsel fees to an injured worker's attorney, on an hourly basis, when the employer is penalized. The employer failed to timely pay an award for compensation benefits to the injured worker. The Appellate Court ruled that the workers' attorney was entitled, in additional to the standard contingency fee, and counsel fees awarded for the appeal of the matter, to an award for services rendered to enforce the Order of the court.
The Appellate Court, presented with the issue three times on appeal, exercised its original jurisdiction, and held "....that an award of attorney's fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits. Quereshi v. Cintas Corp. (Quereshi I), 413 N.J. Super. 492, 503 (App. Div. 2010)."
In its decision the Appellate Court opined, "...the judge of compensation misinterpreted our original opinion"....and that "the alternative interpretation of the judge's action -- willful defiance of our mandate --is completely unacceptable behavior."
Qureshi v. Cintas Corporation, A-2703-10T2 (NJ App Div 2012) Decided Feb 15, 2012 (Quereshi III), Unpublished Decision. 2012 WL 469726 (N.J.Super.A.D.
Related articles
The Appellate Court, presented with the issue three times on appeal, exercised its original jurisdiction, and held "....that an award of attorney's fees is mandatory and the judge of compensation is not limited by the statutory formula governing fee awards following an award of benefits. Quereshi v. Cintas Corp. (Quereshi I), 413 N.J. Super. 492, 503 (App. Div. 2010)."
In its decision the Appellate Court opined, "...the judge of compensation misinterpreted our original opinion"....and that "the alternative interpretation of the judge's action -- willful defiance of our mandate --is completely unacceptable behavior."
Qureshi v. Cintas Corporation, A-2703-10T2 (NJ App Div 2012) Decided Feb 15, 2012 (Quereshi III), Unpublished Decision. 2012 WL 469726 (N.J.Super.A.D.
Related articles
Saturday, August 6, 2011
An Employer Is Responsible To Compensate For Pain
A NJ Appellate Court, in a dramatic reversal of a compensation judge's dismissal of a case, held that "an employer is responsible to compensate" an injured worker for pain. The reviewing court held that, "...the judge misapplied some standards bearing upon this case."
The trial judge's conduct, in baring the treating physician from testifying, was also cited as "a discretionary lapse." The trial judge's ruling was reversed and the case remanded for a hearing.
The case involved a long standing injury that required prolonged treatment for a chronic medical condition. The injury occurred in June of 1989 and was the subject of an Order Approving Settlement in January 2004 for 20% of partial total. That award was entered by another trial judge.
Even thought an Order had been entered by the prior trial judge for continued medical treatment and medication, the insurance company unilaterally terminated provision of those benefits without a court order. The claimant's attorney, George Goceljak, was required to file two motions for continued medical treatment and medication benefits. The trial court dismissed the case for lack of prosecution and then subsequently restored the matter for trial and then marked it "not moved" when a minimal one-cycle (3 week) adjournment was requested. Customarily, NJ workers' compensation cases are tried in piecemeal, every 3 to 6 weeks.
The trial judge then mandated that the trial should begin immediately on January 15, 2010, commenting that she was, "...not going to wait" any longer for the the claimant to proceed with his case. She denied a reconsideration of the application of the injured worker to allow the treating physician to testify, and then proceeded in a 5 month stagnated trial ultimately dismissing the case.
The NJ Appellate Division found, "the judge erred is using, out of its context, the simple thought that 'an employer is not required to compensate and employee for pain,' as a basis for denying this petitioner's application. The larger principle...is that, to the extent that a petitioner experiences continuing pain as a result of his work-connected injury, the employer for whom he worked at the time of the injury remains responsible.'"
Noto v. Staples, Inc., Docket No. A-0237-10T1, 2011 WL 3273921 (NJ App. Div. 2011) Decided August 2, 2010
Thursday, July 28, 2011
Deal or No Deal: Judge Relies on Court Appointed Physician
An Appellate Court has rule that a Judge of Compensation can select an independent physician to review the need for medical treatment. It doesn't matter whether or not the parties agreed formally or informally as to the binding effect of the physician's opinion as to causal relationship and the need for treatment.
The Court has discretion to merely rely upon the physician's opinion and reach a reach a decision based upon the report. The cost of the evaluation is to be paid for by the employer /insurance carrier. Furthermore, the Court need not hold a hearing for oral argument on the issue and can reach a binding on the papers alone.
Thompson v. Quality Et al., 2011 WL 3107767, Docket No. A-1177-10T1 (NJ App. Div.) decided July 27, 2011.
The Court has discretion to merely rely upon the physician's opinion and reach a reach a decision based upon the report. The cost of the evaluation is to be paid for by the employer /insurance carrier. Furthermore, the Court need not hold a hearing for oral argument on the issue and can reach a binding on the papers alone.
Thompson v. Quality Et al., 2011 WL 3107767, Docket No. A-1177-10T1 (NJ App. Div.) decided July 27, 2011.
Wednesday, October 13, 2010
NJ Denies an Occupational Workers Compensation For Last Exposure Applying Apportionment Rule
A NJ Appellate Court denied an employee workers' compensation benefits by applying an apportionment rule as well as the manifestation of disease doctrine. The employee worked in two states and spend more than 10 times of his working career in Pennsylvania working n a similar job during which time manifestation occurred.
"We do not suggest that there is a mandatory mathematical formula that judges of compensation should apply in calculating the employment exposure of a petitioner as part of Williams's jurisdictional test. Although we might quibble with Judge LaBoy's description of petitioner's exposure as "de minimis," we nevertheless conclude that the sixteen-month exposure was not sufficiently substantial under the totality of the circumstances to constitute injury-conferring jurisdiction in the Division."
McGlinsey v George H. Buchanan Company, Not Reported in A.3d, 2010 WL 3932983 (N.J.Super.A.D.) Decided September 30, 2010
"We do not suggest that there is a mandatory mathematical formula that judges of compensation should apply in calculating the employment exposure of a petitioner as part of Williams's jurisdictional test. Although we might quibble with Judge LaBoy's description of petitioner's exposure as "de minimis," we nevertheless conclude that the sixteen-month exposure was not sufficiently substantial under the totality of the circumstances to constitute injury-conferring jurisdiction in the Division."
McGlinsey v George H. Buchanan Company, Not Reported in A.3d, 2010 WL 3932983 (N.J.Super.A.D.) Decided September 30, 2010
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 work related accident and injuries.
Subscribe to:
Posts (Atom)