Defense Expert Found Contradictory in Psych Claim

The NJ Appellate Division affirmed the trial decision of Judge Kovalcik who ruled that the testimony of the defense expert was "contradictory and inconsistent and cannot credit his conclusion that Petitioner no longer suffers from post traumatic stress disorder."

The injured worker was struck from behind by two co-workers who had threatened to kill him.

Sormaz v. Alpha Moving & Storage, Inc. .. JERSEY APPELLATE DIVISION DOCKET NO. A-3482-08T33482-08T3  Decided 2.18.2010

Click here to read more about psychiatric claims and workers' compensation.

Air Ambulance Billing Issues Appealed to US Supreme Court

The US Supreme Court  (SCOTUS) is being asked to review the pre-emption issue involving  air ambulance billing charges. A Petition for Certiorari was filed by PHI Air Medical, LLC following the denial of the Texas Supreme Court to honor the full air ambulance billing changes in a workers’ compensation claim.

NJ Supreme Court Rules Truck Drivers Entitled to Overtime Pay

Plaintiff Elmer Branch brought a putative class action against his employer, defendant Cream-O-Land Dairy, on behalf of himself and similarly situated truck drivers employed by defendant, for payment of overtime wages pursuant to the New Jersey Wage and Hour Law (WHL). In this appeal, the Court considers whether defendant could assert a defense to the action under N.J.S.A. 34:11-56a25.2 based on its good-faith reliance on certain determinations by employees of the Department of Labor and Workforce Development (Department) that defendant is a “trucking industry employer.”

Medical Evidence Falls Short

A workers’ compensation medical report offered was insufficient to establish a direct causal link between the accident and the alleged concussion and subsequent stroke. The medical report was precluded from admission by a Federal Court in a personal injury case.

Vaccine Recommendations: Essential Workers and Seniors

Today the Advisory Committee on Immunization Practices [ACIP] recommended the following phased allocation of COVID-19 \vaccination for both essential workers and seniors. Vaccination of essential workers will favorably impact workers' compensation losses, especially in those jurisdictions where rebuttable presumptions have been enacted that liberalize the burden of proof required to claim workers' compensation benefits.

NCCI Reports: NJ Among the Top States with COVID-19 Workers' Compensation Claims

The National Council on Compensation Claims, Inc., [NCCI] has reported that the COVID-19 workers' compensation claims in the State of New Jersey number among the highest in the nation.

Trauma of Job Loss Often Includes Health Problems

Occupational heart attacks are notorious issues in workers' compensation claims. The New York Times reviews the phenomenon cardiovascular episodes attributed to work related stress due to plant closings.

A "....paper, published last year by Kate W. Strully, a sociology professor at the State University of New York at Albany, found that a person who lost a job had an 83 percent greater chance of developing a stress-related health problem, like diabetes, arthritis or psychiatric issues."

Searching for Vaccine in NJ

NJ Commissioner of Health Judith Persichilli COVID-19 provided a status report yesterday on the status of vaccine distribution in NJ. 

Major increase in work-related deaths reported

The US Bureau of Labor Statistics has released the census of fatal occupational injuries in 2019. A major increase in work-related deaths has been reported over the prior year. The changing workplace and a major increase in deliveries were reflected in the report in that nearly one out of every five fatally injured workers was employed as a driver/sales worker or truck driver.

The Countermeasures Injury Compensation Program (CICP)

The Federal Government has a program to compensate those individuals who have suffered adverse reactions to the COVID-19 (SAR-CoV2) vaccines. The program is the Countermeasures Injury Compensation Program (CICP) established under the Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. §§ 247d-6d, 247d-6e.

NJ Governor Phil Murphy’s Conditional Veto Message on Senate Bill No. 2354

Pursuant to Article V, Section I, Paragraph 14 of the New Jersey Constitution, I am returning Senate Bill No. 2354 (Second Reprint) with my recommendations for reconsideration.

Trust Through Transparency

A significant concern of employees, employers, and insurance companies is whether or not the new COVID-19 vaccines are safe to take. Vaccine efficacy is going to have a significant impact on the decision-making process.

National Strategy for The COVID-19 Response and Pandemic Preparedness

“Our national strategy will be driven by scientists and public health experts who will regularly speak directly to you, free from political interference as they make decisions strictly on science and public health alone.”  President Joe Biden, January 21. 2021

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)

….

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.

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Choosing Who We Will Be in This Season of Hope

As the year draws to an end, we should be grateful to the health care workers and look forward with optimism. Two recent items reflect this spirit.

Investigative Reporting: "Should NJ hospitals be required to tell public about staff COVID-19 outbreaks?"

Northjersey.com reporters Lindy Washburn and Dustin Racioppi have published an insightful.  investigative article on the incidence of COVIS-19 occurring in New Jersey hospitals.

Governor Murphy Signs Executive Order Extending Public Health Emergency in New Jersey

Governor Phil Murphy signed Executive Order No. 210. The Order extends the Public Health Emergency that was declared on March 9, 2020, through Executive Order No. 103, which was previously extended on April 7, May 6, June 4, July 2, August 1, August 27, September 25, October 24, and November 21. Under the Emergency Health Powers Act, a declared public health emergency expires after 30 days unless renewed.

Compensable Mental Stress and Conflict of Law Decisions Posted

The NJ Division of Workers' Compensation [NJDWC] today published 3 Court of Compensation trial level decisions. All were favorable to the injured workers and their dependents.

1. Mental Stress: Stress (harassment) particular to employment results in compensable psychiatric claim
Ross v. City of Asbury Park
06–28659; decided July 28, 2008 by the Honorable Leslie A. Berich
Petitioner alleged compensable injury as a result of mental stress created by prolonged exposure to a hostile work environment. Respondent denied these allegations. After applying the Goyden test along with other relevant legal principles, the Judge of Compensation found that there were objectively stressful working conditions peculiar to the petitioner’s working environment which entitled the petitioner to workers compensation benefits.

2. Mental Stress: Specific event (Hurricane) results in compensable suicide claim
Wilde v. Township of Cranford
99–40680; decided January 17, 2008 by the Honorable Leslie A. Berich
Petitioner filed a claim for dependency benefits for herself and her two children by asserting that her husband suffered a stress-induced occupational suicide. The respondent defended against the claim by contending that the work of the deceased, including his work as a policeman during Hurricane Floyd, was not causally related to his suicide. After careful consideration of the evidence, the Judge of Compensation awarded dependency benefits based on her finding that the work of the deceased as a policeman during this storm "lead to a loss of normal rational judgment that resulted in his suicide".

3. Conflict of Laws: NJ law applied where a special state interest existed
Spiros v. Atlantic Ambulatory Anesthesia Assocs. & Shrewsbury Surgical Center
12–22032; 13-1069 decided October 27, 2014 by the Honorable Leslie A. Beric
Medical providers filed applications for payment/reimbursement of medical expenses, which alleged that the insurance carrier for the employer unreasonably reduced the petitioner’s bills for services rendered. The carrier filed an answer in which it denied liability and jurisdiction, asserting the petitioner’s bills could be paid only at a contractual rate highly limited by Tennessee statute. The carrier also filed motions to dismiss the medical provider claims. In analyzing whether New Jersey has a special state interest in cases where medical providers provide services in New Jersey to injured workers, the Judge of Compensation found that N.J.S.A. 34:15-15 gives New Jersey’s Division of Workers’ Compensation exclusive subject matter jurisdiction and New Jersey law applies where the workers’ compensation benefits were provided in this state. Accordingly, the carrier’s motions to dismiss the medical providers’ claims were denied.

Summaries were provided by the NJ DWC.

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Report Recommends Raising Workers' Compensation Premiums

The California "too good to be true" reform effort, was just that, too good to be true. Rates are going up and benefits are going down. Today's post was shared by votersinjuredatwork and comes from www.californiahealthline.org

Workers' compensation premiums in California should increase by 3.4% in 2014, according to a report by the Workers Compensation Insurance Rating Bureau, the Sacramento Bee's "Capitol Alert" reports.The report represents a non-binding recommendation for insurers (Walters, "Capitol Alert," Sacramento Bee, 8/12). Background In September 2012, Gov. Jerry Brown (D) signed into law a bill (SB 863) that overhauled the state's workers' compensation system. The law -- by Sens. Kevin de León (D-Los Angeles) and Jose Solorio (D-Anaheim) -- changed the formula used to calculate benefits for injured workers, increasing their compensation by an average of 29%. It also eliminated benefits for certain health conditions that often are subject to lawsuits, such as psychiatric problems, sexual dysfunction and sleep loss.

NJ Senate Advances Expanded Parking Lot Bill

The New Jersey Senate Labor Committee voted to release a bill that expands workers' compensation coverage to parking areas provided by an employer.