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In an unpublished decision, the NJ Appellate Division upheld the dismissal of a workers' compensation claim for the repair of a ruptured breast implant.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

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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.

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.

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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).

[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.

It is not "How," It is "When"

Judge David Langham wrote a very enlightening blog post today about how advancing technology is impacting the world and more particularly the workers' compensation arena. As usual, he is right on target with the issue that is going to have the most influence over our changing world.

The Judge mentioned the advent of driverless technology. Ironically, it is national Distracted Driving Awareness Month. If you are driving about the State of New York with a phone in your hand you'll most likely get a ticket for sure this week. The driverless car is already under development with a target for production by major corporations such as Apple by the year 2020. In California Google already has test vehicles on the road.

World TB Day — March 24, 2015

Workers who suffer from work-related tuberculosis maybe entitled to benefits under the NJ Workers' Compensation Act. The increased risk for occupational exposure to tuberculosis (TB) is recognized among health care and other workers exposed to persons with active TB and workers exposed to silica or other agents that increase the progression from latent to active TB. CDC Proportionate Mortality from Pulmonary Tuberculosis Associated With Occupations—28 States, 1979–1990. MMWR 1995; Vol. 44/No. 1:14-19.

A worker who was said to have had a pre-existing dormant tuberculosis was permitted to recover workers' compensation benefits as a result of working in an atmosphere containing impurities which were said to have reactivated the tuberculosis condition. Dawson v. E. J. Brooks & Co., 134 N.J.L. 94, 45 A.2d 892 (1946).

Where a 42 year-old worker was required to operate a rapidly propelled grinding wheel and was exposed to dust from the operation, recovery for the aggravation of a “pre-existing latent tuberculosis” was allowed. The medical witness asserted that the grinding wheel produced an excessive amount of dust which, in turn, caused a severe bronchitis resulting in irritation of the lung tissues and increased coughing, causing an aggravation of the underlying tuberculosis. Reynolds v. General Motors Corporation, 38 N.J.Super. 274, 118 A.2d 724 (Co.1955), aff'd 40 N.J.Super. 484, 123 A.2d 555 (App.Div.1956).

A foundry worker who suffered silicosis in the course of his employment as a molder was permitted recovery based upon the theory that the silicosis aggravated the petitioner's dormant tuberculosis condition. Masko v. Barnett Foundry & Machine Co., 53 N.J.Super. 414, 147 A.2d 579 (App.Div.1959), certif. denied 29 N.J. 464, 149 A.2d 859 (1959).

An individual working in a ribbon factory who was exposed to dust and fumes from carbon paper, teletype, and typewriter ribbons was permitted to recover disability as a result of the activation of an underlying tuberculosis condition by the dust and fumes. Bond v. Rose Ribbon & Carbon Mfg. Co., 78 N.J.Super. 505, 189 A.2d 459 (App.Div.1963), certif. granted 40 N.J. 499, 193 A.2d 137 (1963), aff'd 42 N.J. 308, 200 A.2d 322 (1964).

Each year, World TB Day is observed on March 24. This annual event commemorates the date in 1882 when Robert Koch announced his discovery of Mycobacterium tuberculosis, the bacterium that causes tuberculosis (TB). World TB Day provides an opportunity to raise awareness about TB-related problems and solutions and to support worldwide TB control efforts.

For the second year, CDC supports the theme "Find TB. Treat TB. Working together to eliminate TB." Health officials in local and state TB programs are encouraged to provide educational awareness regarding TB to their communities and to work with other agencies and organizations that care for those most at risk for TB.

In 2014, a total of 9,412 new cases of TB were reported in the United States, a rate of 3.0 per 100,000 population (1). Although the total number of TB cases continues to decline, 2014 showed the smallest decline in incidence in over a decade. Nationally, TB still persists at greater incidence in foreign-born persons and racial or ethnic minorities.

CDC is committed to a world free from TB. Initiatives to improve awareness, testing, and treatment of latent TB infection and TB disease among groups at high risk are critical to achieve elimination of TB in the United States.

Additional information regarding World TB Day and CDC's TB elimination activities is available at http://www.cdc.gov/tb/events/worldtbday.

Reference

​1) ​Scott C, Kirking HL, Jeffries C, Price SF, Pratt R. Tuberculosis trends—United States, 2014. MMWR Morb Mortal Wkly Rep 2015;64:265–9

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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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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)

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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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