Older Drivers: Fatal Crash Risks

Workers age 55 and older who drive as part of their jobs face a troubling reality: they are twice as likely to die in work-related crashes compared to their younger colleagues. This sobering statistic has profound implications for workers' compensation systems nationwide as America's workforce continues to age.

Winter Storm Workers' Compensation Guide

Winter storms pose significant dangers for workers across all industries. As temperatures drop and snow accumulates, the workplace becomes a minefield of potential hazards that can result in serious injuries and costly workers' compensation claims.

Trending: Workplace Psychological Trauma Litigation

Landmark Railroad PTSD Case Signals Broader Shift in Mental Health Coverage

Trial Judge Deference Prevails

How Appellate Courts Respect Workers' Compensation Findings and Why Prior Rulings Don't Always Bar Future Claims

Insurance Snafu Leaves Trucking Company on the Hook

A New Jersey appellate court held that an insurance company failed to terminate coverage properly, and the injured worker was classified as a special employee. 

Fracture of Silicone Breast Implant Held Not to be Compensable

In an unpublished decision, the NJ Appellate Division upheld the dismissal of a workers' compensation claim for the repair of a ruptured breast implant. 

Who Decides if an Employee is a Borrowed-Employee

The adjudication of workers’ compensation claims involves one final arbitrator of fact and law, a compensation judge. In a civil action, a judge decides the applicable law, and the jury decides the factual issues. The NJ Supreme Court recently reiterated the jury’s role in the process when it reviewed a matter determining the status of a borrowed employee.

New Laws in NJ Are a Step to Reduce Gun Violence in the Workplace

Gun violence in the workplace continues to be a significant occupational hazard. Whether it occurs on the work premises or carriers over to an off-premises location, gun violence remains a continuing risk associated with a job,

NJ Division of Workers' Compensation to Go Forward With In-Person Hearings

The New Jersey Division of Workers' Compensation [DWC] has announced that it will go forward with in-person hearings effective March seven 2022. 

Another Hurdle to Prove an Occupational Disease Claim

An attempt to restrict the admission of scientific evidence has been proposed on the Federal level. Even though states have maintained their independence for the most part on this issue, the suggested changes signal an emerging national effort to restrict further the admissibility of scientific evidence that may trickle down to the state judicial systems.

UCSF and Johns Hopkins University Launch Digital Trove of Opioid Industry Documents

The University of California, San Francisco (UCSF) and Johns Hopkins University today announced the launch of the Opioid Industry Documents Archive, a digital repository of publicly disclosed documents from recent judgments, settlements, and ongoing lawsuits concerning the opioid crisis.

NJ Gov Murphy Announces Legislation to Overhaul New Jersey’s Anti-Workplace Harassment Laws for Public and Private Employers

Division on Civil Rights (DCR) Releases Corresponding Report Following Three Public Hearings Held by DCR and the New Jersey Coalition Against Sexual Assault (NJCASA) in September 2019

Federal opioid limitations: Good intentions, bad outcomes

Today's guest author is Jon Rehm, Esq. of the Nebraska bar.

Senate Republicans and Democrats, including Presidential candidate Kirsten Gillibrand, have introduced legislation that would limit opioid prescriptions to a set number of days and limit refills. In my view such legislation would negatively impact people who were injured on the job.

I mostly agree with analysis of the legislation that was recently published in Rewire. One size fits all solutions don’t account for the needs of patients with chronic pain. Recently authors of the Centers for Disease Control guidelines for opioid prescriptions have stated that those guidelines have been misused to arbitrarily limit opioid prescriptions for pain management.

As a practical matter, in my experience prescriptions for opioids are already severely limited for injured workers. Statutory limits on opioids are a good excuse for insurers and self-insureds to wash their hands of future medical care obligations under workers compensation.

Opioid prescription limitations have other effects. Pain doctors who don’t prescribe opioids have more time to perform procedures. Procedures are more profitable for doctors and increase cost. Primary care doctors are often reluctant to prescribe opioids which puts more pressure on pain management doctors. 

There are alternatives to opioids for pain management. Stem cell therapy has shown promise in treating pain. But insurers are reluctant to approve those options as that could increase costs for them and leave medical claims under workers’ compensation open.

I believe that opioid prescription monitoring is a better solution to fighting addiction than prescription limits. Those systems can flag potential problem users and get them help. In the case of someone hurt on the job who develops an addiction to pain medication, treatment for that addiction could be covered by workers compensation.

Massachusetts also developed what amounts to a drug court for opioids within their workers’ compensation court. Problem solving courts, like drug courts, are being increasingly used to help those with substance use issues in the criminal justice system. Massachusetts has adopted the idea in an administrative setting. Federal limits on opioid prescriptions would run counter to innovative programs put in place at a state and local level.

Workers compensation laws developed in the early 20th century when workplace safety laws could only be constitutionally enacted through state police powers under the 10th Amendment. Constitutional law evolved changed during the New Deal era which gave Congress broader regulatory powers over workplace safety and the economy in general.

As a result of the broadening of federal regulatory powers, federal laws limiting opioid prescriptions would likely be constitutional even if they interfered with innovative state programs like Massachusetts workers’ compensation opioid court. While the federal government seems to feel compelled to undercut state workers compensation laws to the detriment of workers, the federal government has given up on oversight of state workers compensation laws that could benefit workers.

The United States Department of Labor monitored state workers compensation laws as result of recommendations from the National Commission on State Workers Compensation Laws.The Commission set up 18 standards for state laws. The DOL stopped overseeing state workers compensation laws in 2004.

In 2015 several Senators and Congressional members, including then and current Presidential candidate, Vermont Senator Bernie Sanders, wrote to the Secretary of Labor about reinstating federal oversight of state workers compensation laws. Reporting by Pro Publica highlighted the shortcomings of state workers’ compensation laws The Department of Labor has made no progress on federal oversight of state workers’ compensation laws since then.

See also:

The Oklahoma Settlement: A Promising Impact on Workers' Compensation

State of NJ Sues a NJ Based Opioid Manufacturer Seeking Reimbursement for Workers' Compensation

Editorial: Why is the Florida Senate helping drug companies in opioid lawsuit?

Expert witness in opioids MDL: Fixing crisis will cost $438 billion

….

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.

A Surge in Groundskeeper/Landscaper Cancer Claims Foreseeable

The second jury verdict that occurred in California against Monsanto/Bayer for cancer arising out of exposure to Roundup that contained glyphosate may foreshadow a surge in workers’ compensation cancer claims for groundskeepers and landscapers.

Insufficient Evidence: When "A Lot" is Not Enough

A Judge of Compensation's opinion must be supported by objective medical evidence and not merely based upon an inadmissible net opinion of a medical expert.

Judicial Limitations in Workers’ Compensation Cases

Frequently a workers’ compensation hearing officer divides a litigated matter into two phases, compensability and damages so litigation can be conducted in a more efficient manner. The procedure is designated as bifurcation and the limitations imposed by the procedure must have carefully adhered to while the adjudicating the claim.

A New Jersey appellate court recently ruled, in an unpublished opinion[1], that a judge of compensation committed reversible error by exceeding the constraints of the bifurcation process. The hearing officer decided the compensability of a denied accident and then went further by awarding damages by way of granting an award for the temporary disability.

An injured worker claimed that he suffered an accident during his employment because of carrying a heavy package at the employer’s place of business. The accident was reported by “text message” and voice message” after he had left the place of employment and returned home. The court assessed the witnesses’ credibility while testifying and determined the injured worker to be credible.

At the time of the trial, the employer relied on a written note from the injured worker’s doctor that stated, the worker “was shoveling snow and developed severe low back pain with right leg radiation.” The attorney for the employer failed to call the doctor as a witness during the trial. The appellate court held that the judge of compensation could give the written note whatever weight it wished to do so, and upheld the finding of the workers’ compensation hearing officials ruling that the matter was compensable and then, despite the bifurcation of the trial, entered an award for temporary disability benefits.

In a collateral issue raised on appeal, prior to making the determination, the judge of compensation, on her own volition sought and relied on additional factual information from the State of New Jersey. She “contacted the State and was advised” that the injured worker had been paid temporary disability benefits” for a certain period. The reviewing appellate tribunal rule that “Judges should not conduct their own factual investigation, let alone do so without notice and an opportunity for the parties to be heard. See Lazovitz v. Bd. of Adjustment, Berkeley Heights, 213 N.J. Super. 376, 381-82 (App. Div. 1986); Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960).” and deemed such action as inappropriate, but vacated the Order for other reasons.

Interestingly, whether a Judge could take “judicial notice” of temporary disability payments was not discussed. “Judicial notice” is a rule of law in evidence that allows a fact to be introduced into evidence if the truth is so authoritatively attested that it cannot be reasonably contested. The NJ Division of Workers’ Compensation normally cross-matches payment information of State temporary disability benefits to efficiently satisfy statutorily imposed liens and eliminate duplicate recoveries. "Administrative procedures are in place for avoiding duplication of benefits in cases where claimants have pursued temporary disability benefits under both the Temporary Disability Benefits Law (TDBL) and the New Jersey Workers' Compensation Act (WCA)." Gelman, Jon L, Workers Compensation Law, 38 NJPRAC 17.10.50. Temporary disability liens–non–duplication of benefits (Thomson-Reuters 2018). 

The award of temporary disability benefits was reversed by the appellate division and the matter was remanded to the Division of Workers’ Compensation for further hearing on that issue. The court held, “Despite bifurcation, the judge found that Moran was entitled to temporary disability benefits and appears to have made other findings of the nature of the injury. These other issues were decided without warning and deprived Cosmetic of an opportunity to present evidence or to confront the evidence upon which the judge relied. Because the judge mistakenly exceeded the limits of the bifurcation agreement, we vacate those parts of the order under review that granted temporary disability benefits and other relief to Moran, and we remand those proceedings that would naturally have followed the determination that Moran sustained a work-related injury.”

While bifurcation allows for judicial efficiency, the constraints imposed by procedure need to be strictly followed. 

Moran v. Cosmetic Essence, LLC, Docket No. A-2588-1671 (N.J. App. Div. 2018) Decided March 14, 2018. 2018 WL 1308857 Only the Westlaw citation is currently available.

…

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).

[1] 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 in the case and its use in other cases is limited. R. 1:36-3.

Workers’ Compensation and Judicial Discretion - Unpublished Decision

Even if something looks, sound and smells correct, judges must use their discretion within the bounds of due process restrictions. The road to final justice in workers’ compensation can sometimes be a long one.

Memorial Day - 2016

President and Mrs. Hoover lead nation in observing Memorial Day. The National Capital, led by President and Mrs. Hoover, on Memorial Day 1929, paid tribute to America's dead heroes of 4 wars at Arlington National Cemetary. President Hoover is shown placing a wreath on the tomb of America's Unknown Soldier. Following the Chief Executive Mrs.Hoover placed a bunch of white carnations on the tomb. 

Source Library of Congress

"The price of freedom is eternal vigilance.” 

– President Thomas Jefferson

FACT Act Hearing US Senate Wed Feb 3, 2016 10am ET

Witness List

Hearing before the

Senate Committee on the Judiciary

On

“The Need for Transparency in the Asbestos Trusts”

Wednesday, February 3, 2016

Dirksen Senate Office Building, Room 226

10:00 a.m.

NJ Senate Passes Workers' Compensation Collective Bargaining Legislation

The NJ Senate passed an historic legislative proposal that will change the way benefits are delivered in work related injuries in NJ. S2447 provides for a collective bargaining arrangement that allows for delivery of benefits without the necessity of formal intervention before the NJ Division of Workers' Compensation, that will however remain an option in the process. 

As amended, this bill permits, but does not require, groups of employers establishing or participating in Taft-Hartley trust funds to purchase workers’ compensation insurance as a group or to apply to the Commissioner of Banking and Insurance for approval to enter into agreements to pool their workers' compensation liabilities for the purpose of qualifying as members of a group plan for self-insurance. A "Taft-Hartley trust fund" is a labor-management, jointly administered fund established by collective bargaining to provide employee benefits such as medical benefits or pensions.